- (1.) Heard Shri V.M. Zaidi, learned Senior Advocate for the petitioner and learned Additional Government Advocate. By means of this petition the petitioner has prayed for stay of his arrest and re-investigation in Case Crime No. 438 of 2005, under Section 302 IPC, P.S. Civil Lines, district Meerut. Briefly the prosecution allegations mentioned in the FIR lodged on 9.12.05 at 9.20 a.m. by Dr. V.P. Singh, informant, were that his son Shailendra Pal Singh Advocate had been fired upon and done to death on 9.12.05 by three unknown miscreants when he was washing his car in his house compound.
(2.) It is argued by the learned counsel for the petitioner that the coaccused persons, Neeraj Bhati, Dharmendra @ Babi, Manoj Kumar Yadav who were charge sheeted and tried were acquitted by the judgement dated 14.12.2006 passed by the Additional Sessions Judge, Court No. 15, Meerut in S.T. No. 772 of 2006. This order of acquittal was allowed to become final. The Senior Superintendent of Police, Meerut, Circle Officer (City), Meerut and the Station House Officer, PS Civil Lines, Meerut has however re-opened the case by commencing investigation against the petitioner without seeking permission from the Magistrate, on the basis of the statement of the co-accused Neeraj, who had already been acquitted by the trial court on 14.12.06. This it was submitted was not permissible in law. Learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in T.T. Antony v. State of Kerala and others, 2001 SCC(Cri) 1048, for the proposition that after the registration of the FIR, no fresh FIR could be lodged in respect of any further material that is disclosed in respect of the same offence. For conducting investigation subsequently on receipt of further information pertaining to the same incident, the leave of the Court would be required and that it was a paramount need to protect the citizen from false implication. Only three accused were said to have arrived at the scene of the crime, who were tried and acquitted by the trial court. No additional accused like the petitioner could be prosecuted at a subsequent stage.
(3.) Learned counsel also referred to the decision of the Apex Court in Mithabhai Pashabhai Patel and others v. State of Gujarat, 2009 2 SCC(Cri) 1047, for the proposition that re-investigation was not permissible, although further investigation may not be objected to. Learned Additional Government Advocate has refuted these contentions and argued that the petitioner has been implicated not only on the basis of the statement of the co-accused, but also on the basis of the statements of the witnesses, i.e. the informant Dr. V.P. Singh, which was recorded on 21.3.2010 and the statements of the witnesses Narendra Singh and Neeraj Singh which were recorded on 2.4.2010 and 4.4.2010 respectively. Learned AGA further stated that the deceased had been murdered in a conspiracy hatched by the petitioner and the co-accused Badan Singh alias Battay and there is no fetter on further investigation, so far as these newly added accused was concerned. It would be a travesty of justice and the interest of society would not be protected if a crime has been committed and the accused who are initially prosecuted are acquitted, and subsequently even when material reaches the hands of the police revealing that some other persons were involved, the police is prevented from investigating into the matter to find out whether the said newly added accused persons are actually involved in the crime or not. Also the fetter on reinvestigation if at all, of the same accused may have been placed on the principle of autre fois acquit or in view of Section 300 Cr.P.C., but so far as the petitioner Vinay Tyagi is concerned he was not at all named as involved at the stage when the other accused Neeraj Bhati, Dharmendra @ Bobby and Manoj Kumar Yadav were tried and acquitted because the witnesses had turned hostile. But his name surfaced subsequently when the larger conspiracy was unearthed by the police. The Court should not lose sight on the fact that a grave offence under Section 302 IPC is being investigated here. No stone should be left upturned for tracing out the real accused and for booking them for the crime.;