LexHIMANSHU KUMAR AND OTHERS versus STATE OF CHHATTISGARH AND OTHERS
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A B C D E F G H 724 SUPREME COURT REPORTS [2022] 11 S.C.R. 724 HIMANSHU KUMAR AND OTHERS v. STATE OF CHHATTISGARH AND OTHERS (Writ Petition (Criminal) No.103 of 2009) JULY 14, 2022 [A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.] Criminal Law – Constitution of India – Article 32 – Petition seeking mandamus for re-investigation / further investigation – Two incidents of alleged brutal massacre of tribals in three villages in the State of Chhattisgarh – Case of the writ petitioners that the Chhattisgarh Police, Special Police Officers (SPOs), the activists of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh Government) and the Paramilitary Forces consisting of the CRPF and the CoBRA Battalions were responsible for the alleged massacre – Whether any case was made out by the writ petitioners for investigation of the two incidents through the Central Bureau of Investigation (CBI) – Held: The extraordinary power of the Constitutional Courts under Articles 32 and 226 respectively of the Constitution qua the issuance of directions to the CBI to conduct investigation must be exercised with great caution – The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation – No one can insist that an offence be investigated by a particular agency – An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice – The power to transfer an investigation must be used “sparingly” and only “in exceptional circumstances” – On facts, the writ petition gives an impression that proper investigation was not being done and, therefore, the same should be handed over to the CBI – However, the fact is that the investigation had been already carried out and charge sheets had been filed – In the overall view of the matter, it was clear that no case, worth the name, has been made out by the writ petitioners for any further investigation much less through an independent agency to be appointed by the Supreme Court. [2022] 11 S.C.R. 724 A B C D E F G H 725 Criminal Law – Investigation – The power to transfer an investigation must be used “sparingly” and only “in exceptional circumstances”. Criminal Law – CrPC does not define what constitutes the making of a “charge” of an offence or what amounts to the “institution of criminal proceedings” – The statement in order to constitute the “charges” should be made with the intention and object of setting criminal law in motion. Code of Criminal Procedure, 1973 – s.340 r/w s.195 – Penal Code, 1860 – ss.191 and 193 – Perjury – Offence of making false affidavit and giving false evidence – Held: There are two conditions, on fulfilment of which, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court – The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him – There should be something deliberate - a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise – Before initiating proceedings for perjury, the court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution – Before sanctioning prosecution there must be a prima facie case of a falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. Penal Code, 1860 – s. 211 – Essential ingredients for invoking s.211 – Discussed. Dismissing the writ petition and disposing of the Interlocutory application, the Court HELD:1.1 In an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like the CBI. Even after the filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent HIMANSHU KUMAR AND OTHERS v. STATE OF CHHATTISGARH
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