# Sanjeev @ Kallu Sethiya v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 750
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-17
- **Case number:** Criminal Misc. Bail Application No. 18458 of 2022
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kallu-sethiya-v-state-of-u-p-opp-party-47861
- **Pages:** 20

## Headnote

Bail-Indian Penal Code, 1860 - Sections
302 & 149 -Eight persons implicated for
murder-two fire arm injuries found on
deceased-accused named are above five in
numbers-only because they were more in
numbers-offence

alleged
cannot
be
considered to be made at this stage-it
appears a case of sudden provocation -all
members
of
alleged
unlawful
assembly
cannot be held liable for offence committed
by one or two accused-no witness from
accused side.

Bail granted. (E-9)

List of Cases cited:

## Text

_Characters 0–39,962 of 68,470. This is a partial read: ask again with offset=39962 for what follows._

750 INDIAN LAW REPORTS ALLAHABAD SERIES
Juvenile Justice Act, 1986 (53 of 1986) or
in a psychiatric hospital or psychiatric
nursing home within the meaning of clause
(g) of section 2 of the Mental Health Act,
1987 (14 of 1987); or 2[(h) in receipt of
annual income less than rupees nine
thousand or such other higher amount as
may
be
prescribed
by
the
State
Government, if the case is before a court
other than the Supreme Court, and less than
rupees twelve thousand or such other
higher amount as may be prescribed by the
Central Government, if the case is before
the Supreme Court.] 2[(h) in receipt of
annual income less than rupees nine
thousand or such other higher amount as
may
be
prescribed
by
the
State
Government, if the case is before a court
other than the Supreme Court, and less than
rupees twelve thousand or such other
higher amount as may be prescribed by the
Central Government, if the case is before
the Supreme Court.]"

(h) in receipt of annual income less
than rupees nine thousand or such other
higher amount as may be prescribed by the
State Government, if the case is before a
court other than the Supreme Court, and
less than rupees twelve thousand or such
other higher amount as may be prescribed
by the Central Government, if the case is
before the Supreme Court.]"

iv. Appendix iv

Jail Manual

"439(a)
Whenever
an
undertrial
prisoner is detailed in jail for an undue long
period the Superintendent shall address the
District Magistrate or the Sessions Judge,
as the case may be, with a view to the
speedy disposal of his case or the exercise
by him of the power of releasing the
prisoner on bail."
----------
(2022) 11 ILRA 750
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2022

BEFORE

THE HON'BLE SIDDHARTH, J.

Criminal Misc. Bail Application No. 18458 of
2022

Sanjeev @ Kallu Sethiya ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Shiv Shankar Gupta, Sri Arun Kumar Shukla,
Sri Prakash Chandra Srivastava, Sri Ram Kishor
Gupta

Counsel for the Opp. Party:
G.A., Sri Rajiv Lochan Shukla

Bail-Indian Penal Code, 1860 - Sections
302 & 149 -Eight persons implicated for
murder-two fire arm injuries found on
deceased-accused named are above five in
numbers-only because they were more in
numbers-offence

alleged
cannot
be
considered to be made at this stage-it
appears a case of sudden provocation -all
members
of
alleged
unlawful
assembly
cannot be held liable for offence committed
by one or two accused-no witness from
accused side.

Bail granted. (E-9)

List of Cases cited:

1. Mariadasan & ors. Vs St. of T. N., 1980 SCC
(Crl.) 523

2. Puran Vs St. of Raj., 1975 SCC (Crl.) 750

3. Sherey & ors. Vs St. of U.P., 1991 SCC (Crl.)
page 1059

4. Kumer Singh Vs St. of Raj. anr., 2021 (4)
Crimes (SC) Mah 461
11 All. Sanjeev @ Kallu Sethiya Vs. State of U.P.
751
5. St.of Bihar Vs P.P. Sharma, 1992 Supp (1)
SCC 222, at page 258

6. Babubhai Vs St. of Guj., (2010) 12 SCC 254 :
(2011) 1 SCC (Cri) 336, at page 268

7. Vinay Tyagi Vs Irshad Ali, (2013) 5 SCC 762,
at page 792

8. Amitbhai Anilchandra Shah Vs CBI, (2013) 6
SCC 348 : (2014) 1 SCC (Cri) 309, at page 383

9. Manohar Lal Sharma Vs Prinicipal Secy.,
(2014) 2 SCC 532 : (2014) 4 SCC (Cri) 1, at
page 553

10. Dinubhai Boghabhai Solanki Vs St. of Guj.,
(2014) 4 SCC 626 : (2014) 2 SCC (Cri) 384, at
page 643

11. Rajiv Singh Vs St. of Bihar, (2015) 16 SCC
369, at page 397

12. Suresh Chandra Jana Vs St. of W.B., (2017)
16 SCC 466, at page 480

13. Nirmal Singh Kahlon Vs St. of Pun., (2009) 1
SCC 441 : (2009) 1 SCC (Cri) 523, at page 455

14. Babubhai Vs St. of Guj., (2010) 12 SCC 254
: (2011) 1 SCC (Cri) 336, at page 272

15. Azija Begum Vs St. of Mah., (2012) 3 SCC
126, at page 128

16. Amerika Rai Vs St.of Bihar, 2011(4) SCC 677
and Ramchandran Vs St. of Kerala, 2011(9) SCC
257

17. Subal Ghorai & ors. Vs St. of W. B., 2013(4)
SCC 607

18. Roy Fernandes Vs St. of Goa, 2012(3) SCC 221

19. Haramant Laxmappa Kukkadi Vs St. of Karn.,
1994(1) SCC 736

20. Dataram Singh Vs St. of U.P. & anr. reported
in (2018) 3 SCC 22

21. Satendra Kumar Antil Vs C.B.I., passed in
S.L.P (Crl.) No. 34 of 37 5191 of 2021
(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri P. C. Srivastava, learned
counsel for the applicant; Sri Rajiv Lochan
Shukla, learned counsel for the informant;
learned A.G.A. for the State and perused
the material on record.

2. In the first information report eight
persons, including the applicant, have been
implicated for causing the offence of
attempt to murder, rioting armed with
deadly
weapons
and
forming
illegal
assembly for prosecution of a common
object of murder. There is allegation in the
first information report that uncle of
informant, Mukesh Agarwal, was sitting on
pavement of his house and talking to one,
Swadesh,
when
co-accused,
Deepesh
Sethiya, came on his Scorpio car and coaccused, Shubham Tamrakar, came out of
the car and directed one car standing to be
removed and he started abusing. Coaccused, Akhilesh Vishwakarma was also
with him. The father of the informant on
hearing the noise came out. At the same
time other brothers of Deepesh Sethiya,
namely, Rakesh Kumar, Vinod Kumar,
Manish Kumar, Manoj Sethiya, Kallu @
Sajiv Sethiya etc., came out. Deepesh
Sethiya and Rakesh Kumar fired which did
not hit any one and in the commotion
which followed every one tried to protect
themselves from Sethiya brothers. All the
accused persons fired on the father of
informant, Ashok Agarwal and uncle of the
informant,
Mukesh
Agarwal.
Ashok
Agarwal, the father of the informant,
suffered number of injuries and the uncle of
the informant suffered injuries in his leg.
Subsequently, father of the informant,
Ashok Agarwal, died and implication of the
accused persons was also made under
Section 302 I.P.C in addition to earlier
implication under Sections 147, 148, 149,
752 INDIAN LAW REPORTS ALLAHABAD SERIES
307, 302, 504 I.P.C, Section 7 Criminal
Law Amendment Act.

3. Learned counsel for the applicant
submitted that the father of the informant
and his uncle both sustained injuries. On
the body of the father of informant
following injuries were found :-

(a) Septic shock with abdominal sepsis
with acute kidney injury.

(b)
Status
post
exploratory
laparotomy.

(c) Alleged history of firearm injury
on abdomen and right thigh.

(d) Hemoperitoneum with multiple
jejunal perforation due to firearm injury.

4. In the statement of the informant,
Aman Agarwal, recorded under Section
161 Cr.P.C., no specific role was assigned
to the applicant. The role of firing was
assigned to co-accused, Deepesh and
Rakesh. In the statement of eye-witness,
Amit Agarwal, also he assigned general
role to all the accused persons. The injured,
Mukesh Agrawal, also did not assigned any
specific role to the applicant in his
statement
recorded
by
Investigating
Officer.

5. Learned counsel for the applicant
submits that applicant has been falsely
implicated in this case along with his coaccused
brothers,
including,
Deepesh
Sethiya and Rakesh Sethiya, who were
assigned the role of firing but it did not hit
any one. He has submitted that the entire
family has been falsely implicated in this
case for ulterior motives. Applicant is in
jail since 15.06.2021 and has no criminal
history to his credit.

6. Learned counsel for the applicant
has relied upon the judgement of the Apex
Court in the case of Mariadasan and
others Vs. State of Tamil Nadu, 1980
SCC (Crl.) 523 and has submitted that the
Apex Court held in this case that where
sudden heated altercation and fight between
two parties occurred and deceased tried to
intervene, was assaulted on the spur of
moment, no unlawful assembly can be said
to have been formed at any time with
common object of assaulting and killing the
deceased. He has further relied upon the
judgement of Apex Court in the case of
Puran Vs. State of Rajasthan, 1975 SCC
(Crl.) 750, wherein the Apex Court held
that in the case of sudden and free fight
constructive liability cannot be imposed as
per Section 149 I.P.C. Reliance has also
been placed on the judgement of the Apex
Court in the case of Sherey and others Vs.
State of U.P., 1991 SCC (Crl.) page 1059,
wherein the Apex Court held that where
number of accused armed with lethal
weapons attacked the victim, it shows that
they were members of unlawful assembly
with common object of committing murder
but the other accused mentioned in an
omnibus way who were armed with lathis
cannot be implicated without attributing
any overt acts to anyone of them and
medical evidence ruling out any injury by
lathis such accused cannot be convicted. He
has submitted that in the first information
report two co-accused namely, Deepesh
and Rakesh, are stated to have made firing
and thereafter omnibus allegations have
been made that all the eight accused fired
on the deceased and injured his brother
which will not make all of them liable for
punishment under Section 149 I.PC.

7. Learned for the informant has
vehemently opposed the bail application.
He has relied upon the judgement in the
case of Kumer Singh Vs. State of
Rajasthan and another, 2021 (4) Crimes
11 All. Sanjeev @ Kallu Sethiya Vs. State of U.P.
753
(SC) Mah 461 and has argued that in this
case the Apex Court set aside the order
passed by the High Court granting bail to
the accused without considering the facts of
the case, nature of allegation, gravity of
offence and role attributed to the accused.
The Apex Court held that High Court did
not consider whether the accused is alleged
to be part of unlawful assembly. Merely
because he was armed with lathi cannot be
a ground for release him on bail. Such an
order passed by the High Court was set
aside. He has relied upon the judgement of
this court in the case of Mahfooj Alam Vs.
State of U.P. , wherein the judgment of
Kumer Singh (Supra) was relied by this
Court.

8. Learned AGA has opposed the
prayer for bail but could not dispute the
above submissions.

9. This court after hearing rival
contentions finds that the facts of this court
are not disputed. The only point requires to
be decided is whether the applicant has
been assigned any overt role in the incident
and can be considered to be member of
unlawful assembly formed for the purpose
attaining the common object of committing
the offence of murder and attempt to
murder. Whether the constructive liability
provided under Section 149 I.P.C can be
considered to have been extended to them
regarding the alleged crime.

10. At the stage of consideration of
bail application the court is required to rely
upon
the
material
collected
by
the
Investigating Officer during the course of
his investigation. The investigation of
criminal cases is rarely fair and the report
of the investigation officer under Section
173(2) are mostly one-sided and against the
procedure of fair investigation.

11. Before proceeding further to
decide the issue in hand, the basis of
charge-sheet
and
the
manner
of
investigation by police in a case involving
cognizable offences needs consideration.

12. Investigation and charge-sheet
form the genesis of the Criminal Trial.
Charge-sheet
is
the
outcome
of
investigation. Under Section 157 of the
Code of Criminal Procedure, the procedure
of investigation in criminal cases has been
incorporated. It requires the intimation of
information to the police officer on the
commission of a crime. The investigation
includes all the procedures which are done
by the police officer under the Code for the
collection of evidence. The police on
registration of FIR shall upon perusal of the
facts of the case decide the line of
investigation
i.e.,
whether
there
is
circumstantial evidence or eyewitnesses.
Circumstantial evidence is the something
which is a chain of circumstances that lead
to
the
crime
for
example
previous
animosity, threats, last seen theory. It is
basically
connection
of
various
circumstances to the crime. On the other
hand, eyewitnesses are those who have
seen the incident take place.

13. The police officer who is pursuing
the investigation is empowered to require the
attendance of the witnesses. The witnesses
shall be such who are acquainted with the
facts and circumstances of the case. The
powers have been conferred under Section
160 of the Code. The provisions of Section
160 of the Code explicitly mention that no
male below fifteen years or a woman shall be
called to attend at any other place than the
place where she resides.

14. The non-compliance of summons
under Section 160 of the Code is
754 INDIAN LAW REPORTS ALLAHABAD SERIES
punishable under Section 174 of the Code.
The person who is required to appear when
served summons does not do so shall be
liable to simple imprisonment up to one
month or with a fine up to INR 500 or both.
The section only requires the attendance of
the witnesses and furnishing of relevant
information about them. The police officer
cannot insist upon the witnesses for the
production of documents before him. The
order which requires the attendance of a
person needs to be in written form.

15. The most crucial part of the
investigation lies in the examination of
witnesses. The statements made by them
can hold a person guilty. The police officer
who is investigating the case has been
empowered
to
conduct
witness
examination. The witnesses are bound to
answer the questions which are related to
the case truly. Section 161 lays down the
procedure for the examination of witnesses
by the police.

16. The investigating officer shall
examine the persons who are acquainted
with the facts of the case. It is the duty of
the investigating officer to record the
statements of the eyewitnesses without any
delay. After examining the witnesses, it is
required by the police officer to write down
the statement made by the witness. There
should be no delay on the part of the police
officer investigating the case in examining
the witnesses. In the event of a delay of the
examination of the witness, the onus lies on
the investigating officer for explaining the
reasons for the delay.

17. When the delay has been properly
explained, it does not have any adverse
impact upon the probable value of a
particular witness. The police officer while
examining the witnesses is not bound to
reduce the statements made into writing. It
is preferred that the statements should be
written or the substance of the whole
examination should be written down at
least. The recorded statements are required
to be noted down in the case diary
maintained under Section 172 of the Code.

18.

A
police
officer
or
the
investigating officer has been empowered
under section 165 of the Code to search the
premises whenever he feels necessary or
has reasonable grounds to believe the same.
The investigating officer or the officer-incharge conducts the search when he
believes that there are sufficient or
reasonable grounds to pursue the same. The
search is conducted when there is an
absolute necessity for the same. Section
93(1) of the Code of Criminal Procedure
provides for the grounds under which a
warrant
for
search
shall
be
issued.
Moreover, the search has to be recorded in
the diary otherwise it becomes illegal.

19. The investigating officer would go
to the locality where the offence was
committed and get two people called the
''Panchas'. The evidence given by the
Panchas is of paramount importance. They
sign a document called the Panchnama
which contains the evidence collected out
of the search. It is signed by them which
validates the search and the procedure
adopted during the investigation.

20. Panchnama has not been defined
anywhere in the law. However, it is a
document which holds great value in
criminal cases. The Panchnama states
things which were found at a particular
place and at a particular time. After this, a
memorandum of the search is prepared by
the investigating officer or the officer-incharge. It needs to be submitted to the
11 All. Sanjeev @ Kallu Sethiya Vs. State of U.P.
755
Magistrate. The police officer-in-charge or
the investigating officer who has a valid
warrant is to be allowed to conduct the
search of a place. Force may be used if he
is not allowed to do so. The search is not
just only of the premises but also of a
person. If it is a female, a female officer
shall search her with utmost decency. The
search of the closed place or of a person
has to be made before two respectable
persons of the society. These respectable
persons are known as the ''Panchas'. They
need to sign the document validating the
search. However, the Panchas need not
necessarily be called as witnesses.

21. Under Section 47 of the Code, the
search of a place can be conducted by the
police when they have to arrest a person. The
police can break in and enter if they are not
being allowed in the place. There is also an
allowance for no-knock break-in to take
place: this is done to take the person by
surprise. The basic objective of conducting a
search is to find evidence which may help in
solving the case.

22. Section 91 of the Code of Criminal
Procedure states that whenever a Court or the
officer-in-charge of a police station feels that
a document or some other thing is necessary
for the purpose of the investigation, such
Court may issue summon or the officer may
in writing, order the person in whose
possession the document is to be produced.
The document shall be produced at the date
and time specified in the summons served to
the person. This section does not apply to a
person who is accused and on trial.

23. The Court cannot issue a summons
for the production of a document or a thing
by the accused. This is because it will
become self-incrimination under Article
20(3) of the Constitution of India.

24. Under section 92 of the Code, if a
document or other thing or a parcel is in the
custody of a postal or telegraph authority,
and the Magistrate whether Judicial or
Executive, any of the Courts wanted that
that
document
for
the
purpose
of
investigation, such Magistrate or the Court
may order the authority to produce the
document before them.

25. Section 173 of the Code requires
the investigating officer to file a report
before the Magistrate after the collection of
evidence and examination of witnesses are
done with. This section requires that each
and every investigation shall be completed
without any unnecessary delay.

26. The report under Section 169 of
the Code can be referred to as the Closure
Report. Closure report is the one in which it
is stated that there is not enough evidence
to prove that the offence has been
committed by the accused. Once the
closure report is filed before the Magistrate,
he may accept and the report the case as
closed, direct a further investigation into
the case, issue a notice to the first
informant as he is the only person who can
challenge the report or he may directly
reject the closure and take cognizance of
the case.

27. A charge sheet is a final report
prepared by the investigation or law
enforcement agencies for proving the
accusation of a crime in a criminal court of
law. The report is basically submitted by
the police officer in order to prove that the
accused is connected with any offence or
has committed any offence punishable
under any penal statute having effect in
India. The report entails and embodies all
the stringent records right from the
commencement of investigation procedure
756 INDIAN LAW REPORTS ALLAHABAD SERIES
of lodging an FIR to till the completion of
investigation and preparation of final
report. Section 173 of the Code of Criminal
Procedure, 1973 provides for report of the
police officer. Filing of the Charge-Sheet
indicates the end of investigation.

28. The purpose of a charge-sheet is
to notify a person of criminal charges being
issued against them. After the charge-sheet
is filed, the person against whom the
charge-sheet has been filed comes to be
known as an accused. The filing of chargesheet
with
the
magistrate
indicates
commencement of criminal proceedings.

29. The U.P. Police Regulation 107
and 108 detail the procedure required to be
followed by the Investigating Officer as
follows:-

107. An Investigating Officer is not to
regard himself as a mere clerk for the
recording of statements. It is his duty to
observe and to infer. In every case, he must
use his own exprt observations of the scene
of the offence and of the general
circumstances to check the evidence of
witnesses, and in cases in which the
culprits are unknown to determine the
direction in which he shall look for them.
He must study the methods of local
offenders who are known to the police with
a view to recognizing their handiwork, and
he must be on his guard against accepting
the suspicions of witness and complaints
when they conflict with obvious inferences
from facts. He must remember that it his
duty to find out the truth and not merely to
obtain
convictions.
He
must
not
prematurely commit himself to any view of
the facts for or against any person and
though he need not go out of his way to
hunt up evidence for the defence in a case
in which he has satisfactory grounds for
believing that an accused person is guilty,
he must always give accused persons an
opportunity of producting defence evidence
before him, and must consider such
evidence carefully if produced. Burglary
investigations should be conducted in
accordance with the special orders on the
subject.

108. The first step of the Investigating
Officer should be to note in the case diary
prescribed by Section 172 of the Code of
Criminal Procedure the time and place at
which he has received the information on
which he acts and to make in the diary a
copy of the first information report. When
beginning his investigation, he must note in
the diary the time and place at which he
begins. He should then inspect the scene of
the alleged offence and question the
complainant and any other person who may
be able to throw light on the circumstances.
At an early stage of the investigation, he
should consult the village crime note-book
to learn of any matter recorded there which
may have a bearing on the case.

30. A perusal of the aforesaid
regulations shows that for the Investigating
Officer, the accused and the complainant
are equal at the time of conducting
investigation. He has to consider the case
of both the parties and thereafter, arrive at a
fair conclusion regarding the investigation
into the allegations made against the
accused. He is not required to simply prove
that the allegations in the F.I.R are correct
and should necessarily collect evidence to
implicate
the
accused,
justifying
his
implication. This was done when the
country was under colonial rule but it
appears that even after independence the
police investigation is still the same. Its aim
is only to justify the implication. Rarely the
statements of the accused side are recorded
by the investigating officers of police.
11 All. Sanjeev @ Kallu Sethiya Vs. State of U.P.
757

31. What is fair investigation has been
considered by the Hon'ble Supreme Court
in number of judgements, considered
hereinbelow:-

1) State of Bihar v. P.P. Sharma,
1992 Supp (1) SCC 222, at page 258 :
48. From this perspective, the function of
the judiciary in the course of investigation
by the police should be complementary and
full freedom should be accorded to the
investigator
to
collect
the
evidence
connecting the chain of events leading to
the discovery of the truth, viz., the proof of
the commission of the crime,. Often
individual liberty of a witness or an
accused
person
are
involved
and
inconvenience
is
inescapable
and
unavoidable. The investigating officer
would conduct indepth investigation to
discover truth while keeping in view the
individual liberty with due observance of
law. At the same time he has a duty to
enforce criminal law as an integral process.
No criminal justice system deserves respect
if its wheels are turned by ignorance. It is
never his business to fabricate the evidence
to connect the suspect with the commission
of the crime. Trustworthiness of the police
is the primary insurance. Reputation for
investigative competence and individual
honesty of the investigator are necessary to
enthuse public confidence. Total support of
the public also is necessary.

2) Babubhai v. State of Gujarat,
(2010) 12 SCC 254 : (2011) 1 SCC (Cri)
336, at page 268 :

32. The investigation into a criminal
offence must be free from objectionable
features
or
infirmities
which
may
legitimately lead to a grievance on the
part of the accused that investigation was
unfair and carried out with an ulterior
motive. It is also the duty of the
Investigating Officer to conduct the
investigation
avoiding
any
kind
of
mischief and harassment to any of the
accused. The Investigating Officer should
be fair and conscious so as to rule out any
possibility of fabrication of evidence and
his impartial conduct must dispel any
suspicion as to its genuineness. The
Investigating Officer "is not to bolster up
a prosecution case with such evidence as
may enable the court to record conviction
but to bring out the real unvarnished
truth". (Vide R.P. Kapur Vs. State of
Punjab AIR 1960 SC 866; Jamuna
Chaudhary & Ors. Vs. State of Bihar AIR
1974 SC 1822; and Mahmood Vs. State
of U.P. AIR 1976 SC 69).

3) Vinay Tyagi v. Irshad Ali,
(2013) 5 SCC 762, at page 792 :

48. What ultimately is the aim or
significance of the expression ''fair and
proper
investigation'
in
criminal
jurisprudence? It has a twin purpose.
Firstly,
the
investigation
must
be
unbiased, honest, just and in accordance
with law. Secondly, the entire emphasis
on a fair investigation has to be to bring
out the truth of the case before the court
of competent jurisdiction. Once these
twin paradigms of fair investigation are
satisfied,
there
will
be
the
least
requirement for the court of law to
interfere with the investigation, much less
quash the same, or transfer it to another
agency. Bringing out the truth by fair and
investigative means in accordance with
law would essentially repel the very basis
of an unfair, tainted investigation or cases
of false implication. Thus, it is inevitable
for a court of law to pass a specific order
as to the fate of the investigation, which
in its opinion is unfair, tainted and in
violation of the settled principles of
investigative canons.
758 INDIAN LAW REPORTS ALLAHABAD SERIES
4) Amitbhai Anilchandra Shah v. CBI,
(2013) 6 SCC 348 : (2014) 1 SCC (Cri)
309, at page 383 :

58.9. Administering criminal justice is
a two-end process, where guarding the
ensured rights of the accused under
Constitution is as imperative as ensuring
justice to the victim. It is definitely a
daunting task but equally a compelling
responsibility vested on the court of law to
protect and shield the rights of both. Thus,
a just balance between the fundamental
rights of the accused guaranteed under the
Constitution and the expansive power of
the police to investigate a cognizable
offence has to be struck by the court.
Accordingly, the sweeping power of
investigation does not warrant subjecting a
citizen each time to fresh investigation by
the police in respect of the same incident,
giving rise to one or more cognizable
offences. As a consequence, in our view
this is a fit case for quashing the second
F.I.R to meet the ends of justice.

58.10. The investigating officers are the
kingpins in the criminal justice system. Their
reliable investigation is the leading step
towards affirming complete justice to the
victims of the case. Hence they are bestowed
with dual duties i.e. to investigate the matter
exhaustively and subsequently collect reliable
evidences to establish the same.

5) Manohar Lal Sharma v. Prinicipal
Secy., (2014) 2 SCC 532 : (2014) 4 SCC
(Cri) 1, at page 553 :

26. One of the responsibilities of the
police is protection of life, liberty and
property of citizens. The investigation of
offences is one of the important duties the
police has to perform. The aim of
investigation is ultimately to search for
truth and bring the offender to book.

27. Section 2(h) of the Code of
Criminal Procedure (for short "the Code")
defines investigation to include all the
proceedings under the Code for collection
of evidence conducted by a police officer
or by any person (other than a Magistrate)
who is authorized by the Magistrate in this
behalf.
28. In H.N. Rishbud, this Court explained
that the investigation generally consists of
the following steps : (AIR p. 201, para 5)

(1) Proceeding to the spot;

(2) ascertainment of the facts and
circumstances of the case;

(3) discovery and arrest of the
suspected offender;

(4) collection of evidence relating to
the commission of the offence which may
consist of the examination of :

(a) various persons (including the
accused) and the reduction of statement
into writing, if the officer thinks fit;

(b) the search of places and seizure of
things,
considered
necessary
for
the
investigation and to be produced at the
trial;

(5) formation of the opinion as to
whether on the materials collected, there is
a case to place the accused before a
Magistrate for trial, if so, take the necessary
steps for the same for filing necessary
charge-sheet under Section 173 Cr.P.C.

6) Dinubhai Boghabhai Solanki v. State
of Gujarat, (2014) 4 SCC 626 : (2014) 2
SCC (Cri) 384, at page 643 :

48. Undoubtedly, the essence of
criminal justice system is to reach the truth.
The underlying principle is that whilst the
guilty must not escape punishment; no
innocent person shall be punished unless
the
guilt
of
the
suspect/accused
is
established in accordance with law. All
suspects/accused are presumed to be
innocent till their guilt is proved beyond
reasonable doubt in a trial conducted
according to the procedure prescribed
11 All. Sanjeev @ Kallu Sethiya Vs. State of U.P.
759
under law. Fair, unbiased and transparent
investigation is a sine quo non for
protecting the accused. Being dissatisfied
with the manner in which the investigation
was being conducted, the father of the
victim filed the petition seeking an
impartial investigation.

7) Rajiv Singh v. State of Bihar,
(2015) 16 SCC 369, at page 397 :-

79. The investigating agency as the
empowered
mechanism
of
the
law
enforcing institution of the State is
entrusted with the solemn responsibility of
securing the safety and security of the
citizens and in the process, act as the
protector of human rights. The police force
with the power and resources at its disposal
is a pivotal cog in the constitutional wheel
of the democratic polity to guarantee the
sustenance of an orderly society. It is
usually the first refuge of one in distress
and violated in his legal rights to seek
redress. The police force, thus is bestowed
with a sacrosanct duty and is undisputedly
required to be impartial, committed and
relentless in their operations to unravel the
truth and in the case of a crime committed,
make the offender subject to the process of
law. The investigating agency, thus in the
case of a probe into any offence has to
maintain
a
delicate
balance
of
the
competing rights of the offenders and the
victim as constitutionally ordained but by
no means can be casual, incautious,
indiscreet in its approach and application.
A devoted and resolved intervention of the
police force is thus an assurance against
increasingly pernicious trend of escalating
crimes and outrages of law in the current
actuality.

80. As a criminal offence is a crime
against the society, the investigating agency
has a sanctified, legal and social obligation to
exhaust all its resources, experience and
expertise to ferret out the truth and bring the
culprit to book. The manifest defects in the
investigation in the case demonstrate an
inexcusable
failure
of
the
authorities
concerned to abide by this paramount
imperative.
81. This Court, amongst others, in Amitbhai
Anilchandra Shah vs. Central Bureau of
Investigation and another (2013) 6 SCC 348,
while underlining the essentiality of a fair, indepth and fructuous investigation had
observed that investigating officers are the
kingpins in the criminal justice system and
reliable investigation is a leading step
towards affirming complete justice to the
victims of the case. It was ruled that
administering criminal justice is a two-end
process, where guarding the ensured rights of
the accused under the Constitution is as
imperative as ensuring justice to the victim. It
was held that the daunting task, though a
compelling responsibility, is vested on the
court of law to protect and shield the rights of
both. That a just balance between the
fundamental rights of the accused guaranteed
under the Constitution and the expansive
power of the police to investigate a
cognizable offence has to be struck by the
Court was emphatically underlined. We are
left
appalled by the incomprehensible
omissions of the investigating agency in the
instant case and we would expect and require
that the authorities in-charge of ensuring fair,
competent and effective investigation of
criminal offences in particular would take
note of this serious concern of the Court and
unfailingly take necessary remedial steps so
much so that these observations need not be
reiterated in future entailing punitive
consequences.

8) Suresh Chandra Jana v. State of W.B.,
(2017) 16 SCC 466, at page 480 :-

34. The last aspect is regarding the
defective investigation and prosecution. If a
760 INDIAN LAW REPORTS ALLAHABAD SERIES
negligent investigation or omissions or
lapses, due to perfunctory investigation, are
not effectively rectified, the faith and
confidence of the people in the law
enforcing
agency
would
be
shaken.
Therefore the police have to demonstrate
utmost
diligence,
seriousness
and
promptness. [refer Ram Bihari Yadav v.
State of Bihar & Ors., (1998) 4 SCC 517].
35. The basic requirement that a trial must
be fair is crucial for any civilized criminal
justice system. It is essential in a
Reportable
society
which
recognizes
human rights and is based on values such
as freedoms, the rule of law, democracy
and openness. The whole purpose of the
trial is to convict the guilty and at the same
time to protect the innocent. In this process
courts should always be in search of the
truth and should come to the conclusion,
based on the facts and circumstances of
each case, without defeating the very
purpose of justice.

32. The Hon'ble Supreme Court has
held in number of cases
that fair
investigation, which precedes filing of
charge-sheet, is a fundamental right under
Article 21 of the Constitution of India.
Therefore, it must be fair, transparent and
judicious.
A
tainted
and
biased
investigation leads to filing of a chargesheet which is infact based on no
investigation and therefore, the chargesheet filed in pursuance of such an
investigation cannot be held to be legal and
in accordance with law. Some of such
observations are as follows :-

1) Nirmal Singh Kahlon v. State of
Punjab, (2009) 1 SCC 441 : (2009) 1 SCC
(Cri) 523, at page 455

:
28. An accused is entitled to a fair
investigation. Fair investigation and fair
trial are concomitant to preservation of
fundamental right of an accused under
Article 21 of the Constitution of India. But
the State has a larger obligation i.e. to
maintain law and order, public order and
preservation of peace and harmony in the
society. A victim of a crime, thus, is
equally entitled to a fair investigation.
When serious allegations were made
against a former Minister of the State, save
and except the cases of political revenge
amounting to malice, it is for the State to
entrust one or the other agency for the
purpose of investigating into the matter.
The State for achieving the said object at
any point of time may consider handing
over of investigation to any other agency
including a central agency which has
acquired specialization in such cases.

2) Babubhai v. State of Gujarat,
(2010) 12 SCC 254 : (2011) 1 SCC (Cri)
336, at page 272 :
45. Not only fair trial but fair investigation
is
also
part
of
constitutional
rights
guaranteed under Articles 20 and 21 of the
Constitution
of
India.
Therefore,
investigation must be fair, transparent and
judicious as it is the minimum requirement
of rule of law. The investigating agency
cannot
be
permitted
to
conduct
an
investigation in a tainted and biased
manner. Where non-interference of the
court would ultimately result in failure of
justice, the court must interfere. In such a
situation, it may be in the interest of justice
that independent agency chosen by the
High Court makes a fresh investigation.

3)
Azija
Begum
v.
State
of
Maharashtra, (2012) 3 SCC 126, at page
128 :

12. In the facts and circumstances of
this case, we find that every citizen of this
country has a right to get his or her
11 All. Sanjeev @ Kallu Sethiya Vs. State of U.P.
761
complaint properly investigated. The legal
framework of investigation provided under
our laws cannot be made selectively
available only to some persons and denied
to others. This is a question of equal
protection of laws and is covered by the
guarantee
under
Article
14
of
the
Constitution.

13. The issue is akin to ensuring an
equal access to justice. A fair and proper
investigation is always conducive to the
ends of justice and for establishing rule of
law and maintaining proper balance in law
and order. These are very vital issues in a
democratic set up which must be taken care
of by the Courts.

33. This country has inherited the
present police system from the British
Government. The main objective of British
rule was to maintain status quo by using the
police force as effective weapon to put down
any challenge to its authority by iron hand.
The police had to take repressive measures on
account of the directions of the British
Government.
The
investigation
was
accordingly carried out keeping in view the
direction of the government and their object
of ruling this country. Charge-sheets were
submitted accordingly which were not the
result of free and fair investigation. The
fundamental rights of the people of the
country were not in existence and the
Criminal Procedure Code was designed in a
manner which was not in accordance with the
rights of the people of this country before
independence. The code no where clearly
provides that the investigating officer shall
necessarily record the statements of witnesses
of both the sides, viz., the accused and the
informant / complainants, while conducting
the investigation into an alleged offence.

34. After India became independent,
it became a welfare state from the police
state of the Britishers. The legislations
which were framed after independence
were in conformity with the fundamental
rights of the people of this country. In the
welfare state, the role of the police became
more difficult in view of deteriorating law
and order situation, communal riots,
political turmoil, student unrest, terrorist
activities, increase in white-collar crimes,
etc. The police force, in addition to the
aforesaid new challenges, came under
stress and strain. Long hours of duty in
connection with law and order situation,
V.I.P duty, etc., left the police with lesser
time to properly investigate the cases.
Under the pressure of work, police started
mechanical investigation of the crimes
entrusted
to
it
for
free
and
fair
investigation. The investigating officer is
subjected to pressure by the influential
persons of society to give report as per their
command. The influence of money in
conducting investigation is quite evident
and it is a very big hurdle in the free and
fair investigation of a crime and case.