JUDGMENT Amitava Lala and R.N. Misra, JJ.
1. We have heard Sri S.F.A. Naqvi on behalf of petitioner, Sri G.S. Hajela on behalf of C.B.I and learned A.G.A for the State.
2. The writ petition has been made for the following reliefs:
(a) Issue a writ, order or direction in the nature of mandamus directing the respondent No.l and 2 to secure the investigation by C.B.I in Case Crime No. 221 of 2001 under Section 302, 395 I.P.C. Police Station Pilkhuwa, district Ghaziabad in pursuance to the Notification issued by Government of Uttar Pradesh Lucknow dated Feb, 2004 within a period of stipulated/specific period.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondent No. 1 and 2 to implement the notification dated Feb, 2004 issued by Government of Uttar Pradesh Home (Police) Section-III No. 219P(1)/6-P-3/2004/15 (75)P/2001 Lucknow dated Feb. 2004 within stipulated period.
(c) Issue any other writ order or direction which this Hon'ble Court may deem fit and proper under the present facts and circumstances of the case.
(d) allow the writ petition with cost in favour of petitioner.
3. According to the petitioner, the investigation by local police was not properly conducted which has been resulted to filing of charge sheet in the name of persons, who are not accused according to him. However, the trial goes on and ultimately order of acquittal was passed against three named accused during the pendency of this writ petition. Out of three accused, one was already murdered. According to the petitioner herein, the application of Nitin Garg, elder brother of the petitioner made for transferring the investigation to C.B.I was dismissed by this Court as well as by the Supreme Court in view of such circumstances. However, at the stage of final hearing, the relevant questions before us is whether even after order of acquittal by the competent court of sessions, further investigation can be directed or not?.
4. It is to be remembered that there are prohibition under the Constitution of India as well as Criminal Procedure Code which are as follows:
Article 20(2): No person shall be prosecuted and punished for the same offence more than once.
Section 300 of Cr.P.C: Person once convicted or acquitted not to be tried for same offence- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of Section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisiosn of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section 188 of this Code.
Explanation-. The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
5. The petitioner relied upon the judgement of Supreme Court commonly known as "Best Bakery Case" ; Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., where from it appears that the re-investigation was ordered even after order of acquittal. The Court found that the investigation is lacking to bring appropriate materials. However, such judgement is related to an appeal but not under a matter under Article 226 of the Constitution of India like the present one.
6. It is to be remembered that particularly in this jurisdiction, we have greatest amount of restriction under Article 226 of the Constitution. Even application under Section 482 Cr.P.C stands on better footings than the cases under Article 226 of the Constitution of India. Be that as it may, herein the question is differing from the question of Best Bakery Case (Supra) as contended by learned Counsel appearing for C.B.I. He contended that in the Best Bakery Case, the concerned eye witness became hostile, by which the entire investigation was affected and as a result whereof, the order of acquittal was passed. There is no such case herein. As because some persons are acquitted, investigation by C.B.I cannot be directed to be made even for others, particularly when his application was rejected by this Court as well as by the Supreme Court.
7. We have carefully considered the issue. The question is of investigation but not investigation against a particular person. Therefore, if any investigation is ordered then all will be automatically involved. But, we can not do so because of order of acquittal having regard to the restriction imposed by the Constitution and the Law to the extent that one cannot be doubly held for the same offence. On the other hand when we go through the judgement of the learned Sessions Judge acquitting the accused, we find that there is an observation about the investigation as not proper.
8. Therefore, taking into account all aspects of the matter, we hold that the investigation can not be proceeded with in respect of the persons who are already tried and acquitted. Under such circumstances, the State is at liberty to act upon on the basis of earlier reference for investigation by C.B.I as regards other in light of judgement and order passed by this Court preferably within a period of two weeks from the date of the communication of the order.
9. The writ petition stands disposed of.
10. No order is passed as to costs.