Order

12/05/2023

1. Heard the parties including learned counsel for the accused persons who appeared suo moto.

2. The petitioner is informant of FIR No. 270, dated 15.04.2017, registered with police station Jawahar Circle, Jaipur East.

3. The petitioner had moved this court in SB Criminal Writ Petition No. 368/2023 for quashing of order dated 02.12.2022 passed by Additional Director General of Police, Crime Branch, Rajasthan whereby, the Commissioner of police was directed not to arrest the accused persons and not to arrive at final conclusion without prior discussion of the matter with him. Further prayer of the petitioner was for necessary direction for fair and speedy investigation of the case.

4. On 02.03.2023, this court disposed of that petition with liberty to the petitioner to approach the Magistrate concerned for monitoring the fair investigation of the case.

5. Learned counsel for the petitioner submits that since lawyers were not working due to their demand against the Government hence, this court passed the order in absence of the petitioner. Since the petitioner could not place his case properly, the petitioner was at loss therefore, the present application has been filed for restoration of criminal writ petition No. 368/2023. The State respondents were issued notice for filing reply, but no reply has been filed till today.

6. Contention of learned counsel for the petitioner is that the order of the Additional Director General of Police at page-255, vide Annexure-9 would reveal that a blanket order has been passed without application of mind as no material was there before the authority concerned to apply mind.

7. The said order reads as follows:-

”mijksDr fo"k;kUrxZRk ys[k gS fd izdj.k la[;k 270@17 iqfyl Fkkuk tokgj lfdZy] t;iqj iwoZ] izdj.k la[;k 262@17] 286@17] 700@17] 439@18 iqfyl Fkkuk oS”kkyh uxj ,oa izdj.k la[;k 56@18 Fkkuk >ksVokM+k] t;iqj if”pe dk vuqla/kku vk;qDrky;

t;iqj }kjk fd;k tk jgk gSA Jheku egkfuns”kd iqfyl jktLFkku ds funsZ”kkuqlkj mDr izdj.kksa ds vuqla/kku dh izxfr ds laca/k esa foe”kZ fd;k tkuk gSA mdk izdj.kksa esa fxj¶rkjh vey esa ykbZ tkus ls iwoZ ¼;fn fxj¶rkjh vko”;d gks bl fu"d"kZ fn;s tkus ls iwoZ v/kksgLrk{kjdrkZ ls foe”kZ fd;k tkuk lqfuf”pr djsa fd egkfuns”kd iqfyl jktLFkku dks voxr djk;k tk ldsA”

8. Learned State-counsel contends that such order can be passed by superior police officer who has power of monitoring the investigation and the order has been passed on some representation of the accused filed before the authority concerned. 9. No doubt, investigating officer has discretion to arrest or not to arrest the accused considering the nature of allegation and nature of material produced against the accused. It is also settled that a superior police officer can monitor the investigation including monitoring of the fact that the case was fit one wherein the arrest should not be made. However, such direction should be based on material available on the record as consideration of those material is essential to ascertain the reasonableness of order consistent with the statutory requirement. Evidently, the aforesaid order depicts that no material was looked into by Additional Director General of Police before the impugned order restraining the arrest of accused was made, hence the same is not sustainable in law.

10. Accordingly, the impugned order stands quashed and order dated 02.03.2023 stands modified to the aforesaid extent.

11. Learned counsel for the petitioner submits that the petitioner had approached the Magistrate concerned in the light of Sakiri Vasu Vs. State of U.P. & Ors. reported in AIR 2008 SC 907, and other judgments passed by the Hon’ble Supreme Court but the Magistrate has not taken any positive action regarding monitoring of the fair investigation of the case. Hence, the writ petition was filed herein. The petitioner would be at liberty to file fresh application alongwith law permitting challenge to the order of the Magistrate, regarding monitor of the investigation.

12. Accordi