Vinay Tyagi vs Irshad Ali @ Deepak - 2012 Supreme(SC) 903

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(SC) 903

SUPREME COURT OF INDIA
A.K. PATNAIK & SWATANTER KUMAR, JJ.
Vinay Tyagi
Versus
Irshad Ali @ Deepak & Others
CRIMINAL APPEAL NOS. 2040-2041 OF 2012 (Arising out of SLP (Crl.) Nos.9185-9186 of 2009) WITH CRIMINAL APPEAL NOS. 2042-2043 OF 2012 (Arising out of SLP(Crl.) Nos. 9040-9041 of 2009) CRIMINAL APPEAL NO. 2044 OF 2012 (Arising out of SLP(Crl.) No. 6210 of 2010) CRIMINAL APPEAL NO. 2045 OF 2012 (Arising out of SLP(Crl.) No. 6212 of 2010)
Decided on : 13-12-2012

Headnote:
Constitution of India,1950 - Article 226 - Indian Penal Code, 1860 - Section 120B, 121 and 122 - Criminal Procedure Code, 1973 - Section 173 - Investigation – FIR - Appeal was working as an informer of Special Cell of Delhi Police - He was also working in a similar capacity for Intelligence Bureau. Primarily his profession and means of earning his livelihood was working as a rickshaw puller it stated that had conversation with the Intelligence Bureau officials for whom he was working - It was demanded of him that he should join militant camp in Jammu & Kashmir in order to give information with respect their activities to the Intelligence Bureau - However said respondent refused to do the job and consequently claims that he has been falsely implicated in present case a report was lodged regarding disappearance of respondent by his family members at Police Station Bhajanpura Delhi - Not only this brother of respondent also sent telegram to Prime Minister Home Minister and Police Commissioner but to report was published in Hindustan Times newspaper Delhi Edition through SHO Police Station Delhi with photograph respondent seeking help of general public in tracing him –Held, Court has taken this view there is no question of treating first report as being withdrawn cancelled or capable of being excluded from the records by the implication - In except by a specific order of higher court competent to make said orders previous as well as supplementary report shall form part of record which the trial court is expected to consider for arriving at any appropriate conclusion in accordance with law - It is also interesting to note that CBI itself understood the order of court - In our considered view trial court has to consider the entire record including both the Delhi Police Report filed under Section Code as well as Closure Report filed by CBI and the documents filed along with these reports appears trial court may have three options firstly it may accept the application of accused for discharge – Order accordingly

Judgement Key Points

The legal document discusses the procedural aspects and jurisdictional powers of courts, particularly Magistrates and higher courts, in handling criminal investigations and reports under the criminal procedure code. It emphasizes that courts must consider all reports, records, and documents submitted by investigating agencies unless there is a specific order to exclude certain parts or a higher court’s directive to treat reports as non-existent (!) (!) (!) (!) . The document clarifies that Magistrates do not have the authority to order 'fresh' or 'de novo' investigations unless explicitly directed by a higher court with a specific order, and such investigations are generally considered beyond their scope (!) (!) (!) (!) (!) .

It highlights the importance of the investigation process, including initial, further, and supplementary investigations, and underscores that only higher courts can order 'reinvestigation' or 'fresh investigation' in exceptional cases, especially when the investigation is unfair or tainted (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . The powers of courts to direct investigation are limited to ordering 'further investigation' based on the existing reports, and such orders must be specific and justified (!) .

The document also discusses the nature of reports filed by investigating agencies, including primary reports, supplementary reports, and reports upon further investigation, emphasizing that all such reports, unless excluded by a higher court, form part of the case record and must be considered by the court (!) (!) (!) (!) (!) . It stresses that courts can only discharge or proceed with cases based on the entire record and that the power to direct 'further investigation' is to be exercised cautiously and only in exceptional circumstances to serve the ends of justice (!) (!) .

Furthermore, the order of courts regarding investigation and reports should be interpreted in accordance with the procedural scheme, ensuring that the investigation remains fair and unbiased, and that the rights of the accused are protected (!) (!) (!) . The document ultimately underscores that courts must carefully examine all reports and records before proceeding, and that the authority to order 'reinvestigation' or 'fresh investigation' lies predominantly with higher courts, exercised sparingly and with clear justification (!) (!) (!) (!) (!) .

In conclusion, the legal framework mandates that all investigation reports are part of the case record unless explicitly excluded, and courts should only order further investigation in exceptional cases, ensuring procedural fairness and adherence to legal principles.

JUDGMENT :-

Swatanter Kumar, J.

1. Leave Granted

2. The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal :

Question No.1 : Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a Court? If so, to what effect?

Question No.2 : Whether the Central Bureau of Investigation (for short ‘the CBI’) is empowered to conduct ‘fresh’/’re- investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code?

Facts :-

3. Irshad Ali @ Deepak, Respondent No.1, in the present appeal was working as an informer of the Special Cell of Delhi Police in the year 2000. He was also working in a similar capacity for Intelligence Bureau. Primarily, his profession and means of earning his livelihood was working as a rickshaw puller. On 11th December, 2005, it is stated that he had a heated conversation with the Intelligence Bureau officials for whom he was working. It was demanded of him that he should join a militant camp in Jammu & Kashmir in order to give information with respect their activities to the Intelligence Bureau. However, the said respondent refused to do the job and consequently claims that he has been falsely implicated in the present case. In fact, on 12th December, 2005, a report was lodged regarding disappearance of respondent no.2 by his family members at Police Station, Bhajanpura, Delhi. Not only this, the brother of the respondent no.2 also sent a telegram to the Prime Minister, Home Minister and Police Commissioner on 7th and 10th January, 2006, but to no avail. On 9th February, 2006, a report was published in the Hindustan Times newspaper, Delhi Edition, through SHO, Police Station, Bhajanpura, Delhi with the photograph of respondent no.2 seeking help of the general public in tracing him. On that very evening, it is stated that the Special Cell of the Delhi Police falsely implicated both the respondents in a case, FIR No. 10/2006, under Sections 4 and 5 of the Explosive Substances Act and under Section 120B, 121 and 122 of the Indian Penal Code, 1860 (for short ‘IPC’) read with Section 25 of the Arms Act. Both the respondents were described as terrorists. In the entire record, it was not stated that the respondents were working as informers of these agencies. At this stage, it will be pertinent to refer to the FIR that was registered against the accused persons, relevant part of which can usefully be extracted herein: -

“To, the Duty Officer, PS Special Cell, Lodhi Colony, New Delhi. During the 3rd week of January, 2006 information was received through Central Intelligence Agency that militant of Kashmir based Organisation has set up a base in Delhi. One Irshad Ali @ Deepak is frequently visiting Kashmir to get arms, ammuniation and explosives or the instructions from their Kashmir based Commanders. He is also visiting different parts of the country to spread the network of the militant organizations. As per the directions of senior officers, a team under the supervision of Sh. Sanjeev Kumar, ACP Special Cell led by Inspector Mohan Chand Sharma was formed to develop this information and identify Irshad and ‘his whereabouts in Sultanpuri area, Secret sources were deployed. During the course of developments of information, it came to knowledge that above noted Irshad Ali @ Deepak is resident of Inder Enclave, Phase-II, Sultanpuri, Delhi. It also came to notice that one Mohd. Muarif Qamar @ Nawab r/o Bhajanpura, Delhi is also associated with the militant organization. During the development of this information, it was revealed that both Irshad Ali and nawab had gone to

Click Here to Read the rest of this document