1 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.194 OF 2023
(ARISING OUT OF SLP (CRIMINAL) NO.6951 OF 2018) AMAR NATH CHAUBEY APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. RESPONDENT(S)
O R D E R
Leave granted.
By the impugned order dated 17.05.2018, the Criminal Misc. Writ Petition No.18872 of 2017 filed by the appellant came to be disposed of by the following, inter alia , order passed by the High Court which is as follows:-
“Heard Sri Dilip Kumar assisted by Sri Upendra Upadhyaye learned counsel for the petitioner, Sri Gyan Prakash, learned counsel for the C.B.I, Sri A.K.Sand, learned A.G.A. for the State. An affidavit of compliance has been filed by In-charge, Cheif Secretary, Uttar Pradesh and the same is taken on record. From the perusal of the compliance affidavit, it transpires that out of 24 cases which were shown as criminal antecedents of Shushil Singh, in 11 cases, he has been acquitted, in 5 cases, final report has been submitted, in two cases, he has been exonerated and three cases are pending against him 2 including the present one. Learned counsel for the petitioner has submitted that petitioner is the informant of the case who has lodged an F.I.R. in the year 2015 and the complicity of the newly impleaded accused has come into light on 17.02.2017. It has been further stated that as far as investigation with respect to some other accused are concerned, process of tracing out their whereabouts is in progress as some of them have absconded to Mumbai and their
identity could not be traced out, therefore, police report could not be submitted and investigation could not be concluded. Sri P. K. Singh, learned counsel for the newly added respondent No.5 denied the participation of the said accused in the present case but he could not dispute the fact that investigation against him, is pending. The Chief Secretary of the State is directed to ensure that the investigation of this case shall be conducted by the Competent Officer not below the rank of Deputy S.P. who shall conclude the investigation of the present case within a period of eight weeks from the date of production of
certified copy of this order and submit police report, accordingly, before the competent court.
With the aforesaid direction, this Writ Petition is disposed of.” The matter engaged the attention of Bench of three learned Judges after notice was issued by this 3
Court and they passed order dated 14.12.2020. Since most of the relevant facts to resolve the lis as it stands today has been captured in the said order, we deem it
appropriate to refer to it.
” NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.6951 OF 2018 AMAR NATH CHAUBEY …PETITIONER (S)
VERSUS
UNION OF INDIA AND OTHERS . ..RESPONDENT(S)
O R D E R
One Shri Ram Bihari Chaubey, the father of the petitioner, was shot dead at his residence in Village Shrikanthpur, Chaubepur, Varanasi in the State of Uttar Pradesh, on
04.12.2015 at around 7.15 AM. An F.I.R. No. 378/2015 under Sections 302, 147, 148 and
149, I.P.C. was registered the same day at Chobepur Police Station at 11.15 AM. Four
unknown assailants were stated to have come on a motor cycle. Two of them entered the residence and shot the deceased, while the two others waited outside, after which they all escaped.
2. The petitioner, son of the deceased, approached the Allahabad High Court complaining of the lackadaisical manner in which the police was investigating because some powerful political personalities were also involved. The investigating officers were also being changed with regularity seeking a mandamus for a proper inquiry into the murder of his father including by the C.B.I. The High Court called for a progress report and also required the Chief Secretary to file his affidavit in the matter. The petitioner is aggrieved by the impugned 4 order of the High Court dated 17.05.2018 disposing the writ petition, accepting the
contention of the police that the investigation would be concluded expeditiously and report will be submitted before the competent court within a period of eight weeks.
3. We have heard the learned counsel for the petitioner, for the State of Uttar Pradesh and for respondent no.5. On 29.06.2017 charge sheet was submitted against one Raju alias Nagender Singh son of late Ramji Singh, Ajay Singh and Shani Singh both sons of Narayan Singh, citing 21 witnesses. The charge sheet stated that the name of respondent no.5 had transpired during investigation as having conspired in the killing after which Section 120B I.P.C. was also added. The charge sheeted accused Raju
alias Nagender Singh confessed that apart from the others named by him, respondent no.5 in conspiracy had the murder planned and executed. The investigation was thus kept
pending against Manish Singh, Dabloo Singh and respondent no.5. The police in the case
diary noting dated 17.02.2017 recorded that on basis of confidential information from the
police informer, that respondent no.5 had given a supari of Rs. Five lacs for murder
of the deceased. Political rivalry existed between the deceased and respondent no.5 on
account of assembly elections as also panchayat elections. It further contained noting that the real person behind the incident was respondent no.5 based on very confidential information, having serious ramifications. The case diary noting dated 06.04.2017 records that the police party went to landmark tower to arrest Ajay Singh and Shani Singh. Respondent no.5 was present there and questioned why the police had come.
Respondent no.5 demanded the production of arrest warrant against the concerned persons and required the investigating officer to give in writing that the suspect was being 5 taken for interrogation. Raju alias Nagender Singh after intensive interrogation disclosed
that with co-accused Ajay Singh, he had gone to meet respondent no.5, disclosing the
manner in which the murder was committed by him and his accomplices. The case diary noting dated 29.06.2017 records that investigation against Dabloo Singh and Manish Singh and respondent no.5 were in progress.Respondent no.5 vide Annexure P.5 letter no. 4/2017 wrote to the Principal Secretary that he was being falsely implicated and the
matter be properly investigated, if required from the C.B.I.
4. The Sub-Inspector of Police submitted a progress report before the High Court on
11.10.2017 that the investigation up to that date revealed the involvement of Ajay Singh, Raju alias Nagender Singh, Shani Singh, Manish Singh, Dabloo Singh and respondent no.5 as a conspirator. Charge sheet had been submitted against Ajay Singh, Raju alias Nagender Singh and Shani Singh and investigation with regard to Dabloo Singh, Manish Singh and respondent no.5 is still pending. It further stated that raids were conducted for arresting others including respondent no. 5. From the material collected during investigation it was apparent that the murder was committed due to political rivalry by hatching a conspiracy effectively with the help of respondent no.5 and that the police were trying to collect more credible materials. Another affidavit was filed on 16.05.2018 before the High Court, by one Shri Devender Chaubey, the In-charge Chief Secretary, disclosing that respondent no.5 had 24 criminal cases against him including under Section 302 IPC. In five cases final report had been filed in absence of credible evidence. In nine cases respondent no.5 had been charge sheeted but was acquitted. Five criminal trials are still pending againstespondent no.5. He had also been put behindbars under the provisions of National 6 Security Act by order dated 11.11.1998. It concluded that the allegations against respondent no.5 were under investigation.
5. This Court issued notice in the present matter on 07.09.2018. On 20.01.2020, this
Court directed the Director General of Police, U.P. to file an affidavit with regard to the status of the investigation vis–vis respondent no.5. An affidavit was filed by the D.G.P. on 22.02.2020 stating that there was no cogent evidence against respondent no.5 despite discreet efforts. Investigation of the case was therefore closed on 30.01.2019 and report submitted in theconcerned court along with other police papers on 04.06.2019 with regard to accused jay Singh, Shani Singh, Raju alias Nagender Singh only and no further investigation was pending against any person. The trial court summoned the complainant for evidence on several dates, but the complainant had not appeared.
6. We have considered the matter. The F.I.R. was registered on 04.12.2015. Eight investigating officers have been changed. Respondent no.5 suo moto sought impleadment in the writ petition filed in the High Court. An investigation which had been kept pending since 04.12.2015 was promptly closed on 30.01.2019 after this Court had issued notice on 07.09.2018. The affidavit of the Director General of Police, U.P. not being satisfactory, on 26.10.2020 this Court required the respondents to file copy of the closure report stated to have been filed before the court concerned. The affidavit
filed by the Circle Officer, Pindara, Varanasi dated 31.10.2020, pursuant to our order dated
26.10.2020 encloses the closure report dated 02.09.2018, the supervision note of the
Superintendent of Police, Rural dated 17.12.2018 and the closure report dated 30.01.2019 submitted in court. We have gone through the same. It simply states that there 7 was no concrete evidence of conspiracy against respondent no.5 and that the informant had not placed any materials before the police direct or indirect with regard to the conspiracy. As and when materials will be found against respondent no.5 in future, action would be taken as per law. No credible evidence was found against Manish Singh and Dabloo Singh.
7. We are constrained to record that the investigation and the closure report are extremely casual and perfunctory in nature.The investigation and closure report do not contain any material with regard to the nature of investigation against the other accused including respondent no.5 for conspiracy to arrive at the conclusion for insufficiency of
evidence against them. The closure report is based on the ipse dixit of the Investigating Officer. The supervision note of the Senior Superintendent of Police (Rural), in the circumstances leaves much to be desired. The investigation appears to be a sham, designed to conceal more than to investigate. The police has the primary duty to investigate on receiving report of the commission of a cognizable offence. This is a statutory duty under the Code of Criminal Procedure apart from being a constitutional obligation to ensure that peace is maintained in the society and the rule of law is upheld and applied. To say that further investigation was not possible as the informant had not supplied adequate materials to investigate, to our mind, is a preposterous statement, coming from the police.
8. The police has a statutory duty to investigate into any crime in accordance with
law as provided in the Code of Criminal Procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot 8 abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.
9. In Manohar Lal Sharma vs. Principal Secretary and ors., (2014) 2 SCC 532, this
court observed as follows : 24. In the criminal justice system the investigation of an
offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in 9 jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens. 25. Lord Denning has described the role of the police thus: In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well- trained and well-disciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a mans house without authority. They must not use more force than the occasion warrants. 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 10 search for truth and bring the offender to book. 39.In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to
ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference.
10. The trial is stated to have commenced against the charge sheeted accused, and the
informant summoned to give evidence. In the facts of the case, we direct that further
trial shall remain stayed. The closure reports dated 02.09.2018, 17.12.2018 culminating in the report dated 30.01.2019 are partly set aside insofar as the non-charge sheeted
accused are concerned only. Those already charge sheeted, calls for no interference.
11. We hereby appoint Shri Satyarth Anirudh Pankaj, I.P.S. as the senior officer, State of Uttar Pradesh to carry out further investigation in the matter through a team of
competent officers to be selected by him of his own choice. The State shall ensure the availability of such officers. The investigation must be concluded within a
period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police, Uttar Pradesh shall do the needful. 11
12. List immediately after two months for further orders. ……………..J.
[R.F. NARIMAN] ……………..J.
[NAVIN SINHA] ……………..J.
[KRISHNA MURARI]
NEW DELHI
DECEMBER 14, 2020.”
It is next necessary to refer to the fact that a report came to be filed by the Officer appointed by this Court. The report came to be filed on 19.05.2022. The order dated 23.08.2022 passed by this Court would explain what happened in the light of the report dated 19.05.2022. Hence, we advert to the same. “Heard Mr. Yatindra Singh, learned
senior counsel appearing for the petitioner, Mr. Pramod Swarup, learned
senior counsel appearing for the respondent-State and Mr. Mukul Rohatgi, learned senior counsel appearing for the respondent No. 5. We have perused the report by the officer. We have also perused the additional documents produced by the petitioner and find that those pertain to Call Detail Records (CDRs). We may also observe that these CDRs were also produced before the Sessions Judge (Varanasi) when bail for one of the co-accused in the case was considered and bail was declined. 12 On the last occasion, we had also interacted with the investigating officer (Shri Satyarth Anirudh Pankaj, I.P.S.). Considering the above circumstances and also after hearing the submissions of the learned counsel for the parties, we deem it appropriate for the further report from the Investigating Officer in pursuance to the further investigation directed towards the CDRs and drawing his conclusion therefrom. The report be placed before us within three months from receipt of a copy of this order. The report in English be produced in a sealed cover looking into the CDRs pertaining to all the
accused in the case which is available. Mr. Mukul Rohatgi, learned senior counsel for respondent No. 5, has prayed for a copy of the report but at this stage, we feel that since we have asked for a further report, the same need not be provided to any of the parties. List the matter after three months.” Pursuant to the said order, another report
has been filed by the Officer in a sealed cover. We have had the benefit of reading the report and in particular the conclusion arrived at by the Officer on the basis of the CDR details which forms the subject matter of the order dated 23.08.2022. We also heard Mr. Yatindra Singh, learned senior counsel appearing on behalf of the appellant,Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the respondent No.5, Mr. Pramod Swarup, 13learned senior counsel assisted by Mr. Garvesh Kabra, learned counsel appears on behalf of the respondent- State of U.P. Mr. Yatindra Singh, learned senior counsel appearing on behalf of the appellant undoubtedly would highlight certain facts. He would submit that respondent No.5 has to his credit being implicated in as many as 24 criminal cases. He further points out that one of the accused who has been charged has confessed about the involvement of respondent No.5 in the murder of the appellant’s father. He would request the Court to consider an investigation being ordered by the Central Bureau of Investigation or by any agency other than the agencies of the State of U.P. He did touch upon certain aspects relating to political rivalry which we do not think is necessary for us to burden the order with. Substantially, his contention is that the respondent No.5 is indeed involved and if a thorough investigation is done by an impartial agency, the truth of the matter would be out as it should be and the ends of justice met which it is the duty of this Court to ensure. Per – contra, Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the respondent No.5 would point out that this is a case where both the appellant and the respondent No.5 contested an election in the year 2007 in which the respondent 14 No.5 emerged victorious by a large margin and the appellant’s father stood in the third position. Another election followed in the year 2012 and what is more the respondent No.5 won at four elections.Respondent No.5 had absolutely no reason to be involved in the murder of the father of the appellant. He would submit that there have been three closure reports, finding no material against the respondent No.5. What is much more important according to him is that this Court by order dated 14.12.2020 constituted an SIT reposing faith in the Officer. The Officer submitted a report and the aspect (the existence of certain CDRs) was directed to be investigated. Pursuant to the same, the Officer has given a report, and if still there is nothing against the respondent No.5, there will be no basis for this Court to not accept the report. At any rate, he would submit that as against the reports of the SIT constituted by this Court functioning under the nose of this Court, the request of the appellant to constitute a team of CBI Officers should not be accepted. Learned senior counsel would very clearly submit that in the ongoing trial against accused who have been charged, should there emerge material within the meaning of Section 319 of the Code of Criminal Procedure, it would always be open to the 15 trial Court to use its power and to proceed against respondent No.5. Even the material which has been produced before this Court could engage the trial Court, should this Court so order, it is submitted. Mr. Yatindra Singh, learned senior counsel appearing on behalf of the appellant, no doubt, points out and rightfully so, that the three closure reports referred to by the respondent No.5 stand set aside by this Court and he also points out that this Court has specifically referred to the casual manner in which the investigation was carried out. He further complains that the respondent No.5 was never arrested and never questioned. After hearing the learned senior counsel for the parties, we are of the view that as far as interfering with the impugned order is concerned, in view of the order dated 14.12.2020, the said question does not arise. In other words, in view of the subsequent development in the form of the order dated 14.12.2020, the question of interfering with the impugned order does not arise as the order dated 14.12.2020 has overtaken the parties. We are also to bear in mind the further development in the form of the report and still further the order dated be noted, is the report which has been filed based on 16 the order dated 23.08.2022. We are not inclined to direct the investigation of this case by the CBI. Investigation has been carried out by an Officer drawn from the Indian Police Service in whom this Court apparently placed full faith. We do not wish to say anything further in view of the order which we propose to pass. We would think that the interest of justice would be best sub served if we dispose of this appeal by incorporating two safeguards. In the first place, we intend to provide that if material emerges within the meaning of Section 319 of the Code of Criminal Procedure during the trial against the accused which implicates the respondent No.5 the Court should be left free to take steps in accordance with law. Secondly, we also feel that the next safeguard should be that the trial Court should be left free to take a decision as to whether the reports which have been submitted by the SIT should be accepted or whether further order should be passed. Accordingly, the appeal is disposed of with the following directions. We direct that the reports which have been submitted to this Court will be made over in sealed cover by the Registry to the Trial Court which is the Additional Sessions Judge, Varanasi, Uttar Pradesh. The Additional Sessions Judge, Varanasi, Uttar17 Pradesh will be free to exercise powers available to him under the law in regard the report submitted by the Officer to this Court pursuant to the orders dated 14.12.2020 and 23.08.2022. We further direct that the trial Court will be entirely free to invoke the power under Section 319 of the Code of Criminal Procedure, should the occasion present itself as against the respondent No.5. Pending application(s), if any, stand disposed of. ..J.
[K. M. JOSEPH]..J.
[B. V. NAGARATHNA]
New Delhi
23rd January, 2023

18 ITEM NO.3 COURT NO.3 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 194/2023
(ARISING OUT OF SLP (CRIMINAL) NO.6951 OF 2018)
AMAR NATH CHAUBEY Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
(I.A NO. 169077/22 GRANT OF BAIL
IA No. 169069/2022 – INTERVENTION/IMPLEADMENT)

Date : 23-01-2023 These matters were called on for
hearing today.
CORAM : HON’BLE MR. JUSTICE K.M. JOSEPH
HON’BLE MRS. JUSTICE B.V. NAGARATHNA
For Appellant(s) Mr. Yatindra Singh, Sr. Adv.
Mr. Vibhav Mishra, Adv.
Mr. Ekansh Bansal, AOR
Ms. Akshata Sharma, Adv.
For Respondent(s) Mr. Pramod Swarup, Sr. Adv.
Mr. Garvesh Kabra, AOR
Mr. Vikramjeet Banerjee, A.S.G.
Mr. R Balasubramanian, Sr. Adv.
Mrs. Vanshaja Shukla, Adv.
Mrs. B K Satija, Adv.
Mr. Akshit Pradhan, Adv.
Mr. Chandra Prakash, Adv.
Ms. Sujatha Bagadhi, Adv.
Ms. Shruti Agarwal, Adv.
Ms. Janhvi Prakash, Adv.
Mr. Kartik Dey, Adv.
Mr. Salik Ram, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Mukul Rohatgi, Sr. Adv.
Mr. Akhand Pratap Singh, Adv.
Mr. Sameer Rohatgi, Adv.
Ms. Aswathi M.k., AOR
Mr. Divyesh Pratap Singh, AOR
19 UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal stands disposed of in terms of the signed order with the following directions.
“We direct that the reports which have been submitted to this Court will be made over in sealed cover by the Registry to the Trial Court which is the Additional Sessions Judge, Varanasi, Uttar Pradesh. The Additional Sessions Judge, Varanasi, Uttar Pradesh will be free to exercise powers available to him under the law in regard the report submitted by the Officer
to this Court pursuant to the orders dated 14.12.2020 and 23.08.2022. We further direct that the trial Court will be entirely free to invoke the power under Section 319 of the Code of
Criminal Procedure, should the occasion present itself as against the respondent No.5.”
Pending application(s), if any, stand disposed
of.
(JAGDISH KUMAR) (RENU KAPOOR)
COURT MASTER (SH) ASSISTANT REGISTRAR
(Original signed order is placed on the file)