AMAR SARAN,SURENDRA SINGH,J - (1.) HEARD learned counsel for the petitioner and the learned A.G.A. for the State. This petition has been filed for quashing the F.I.R. registered on the basis of G.D. No. 26 dated 20.3.2010, Case Crime No. 145 of 2010, under sections 302, 201, 34, 120-B I.P.C. and under section 3 (2) V of SC/ST Act, Police Station Chaubepur, district Varanasi and for staying the arrest of the petitioner during investigation. The background of this case was that an unknown dead body was found in village Sompur Dhav on 20.3.2010, and an information in this regard was given by one Kripa Shankar Singh at P.S. Chaubepur.The post mortem of the unknown dead body was conducted the same day. Subsequently, the corpse was identified to be that of Deepak alias Banti. After disclosures made by an informer and after recording the statements of the witnesses under section 161 Cr.P.C. a charge sheet was submitted in Court against Satish, Raj Kumar, Bhim @ Ajai and Santosh, by the first investigating officer.
(2.) SOME of the statements of the co-accused and witnesses have been filed in this writ petition. It was stated that two of the witnesses Pappoo Singh @ Arun Singh and Pintoo Singh, whose statements were recorded under section 161 Cr. P. C. by the second investigating officer (C.O.) stated that the petitioner had enmity with Pappoo Singh because of some property dealing dispute, whom he wanted to eliminate, but nothing happened to these persons, and instead the deceased Deepak @ Banti was done to death, regarding which these witnesses have not said anything. It was further submitted that there is inadequate evidence of conspiracy of the petitioner with the other charge sheeted accused. The deceased was himself a bad character with a criminal background, and any of his enemies may have murdered him. It is beyond the purview of the Court at the stage when it is considering a criminal writ petition to examine the statements of witnesses in the case diary, and to form an opinion on their probative value for reaching an inference on the likelihood of the conviction of an accused on the basis of such statements. In State of T.N. v. Thirukkural Perumal (1995) 2 SCC 449, it has been observed that it is impermissible to quash criminal proceedings based on evidence collected by the investigating agency during investigation: "The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition. . . . . . . . seeking the quashing of the FIR and the criminal proceedings." Even for the trial Court the statements of witnesses under section 161 Cr.P.C. are not substantive pieces of evidence, and in view of the proviso to sub-section 1 of section 162, they can only be used by the trial Court for contradicting a witness when he deposes before the Court in the manner provided under the said proviso.
(3.) MOREOVER , it is not clear whether the said statements, which have been filed in this writ petition are the entire statements of the witnesses as recorded by the previous investigating officer who submitted the charge sheet against the co-accused, as well as the totality of statements recorded by the subsequent investigating officer viz. the C.O. who conducted the subsequent investigation. We can also not lose sight of the fact that the petitioner is wanted in a grave case inter alia under section 302 IPC. The charge sheet having already been submitted in this case, no question arises of quashing the First information report at this stage, which is the main prayer. When the principal prayer cannot be granted, the ancillary prayer for staying the arrest of an accused can also not be allowed. In view of section 173(8) Cr.P.C no fetter can be placed on the power of the police to further investigate a case even after submission of the charge sheet. In Dinesh Dalmia v CBI, AIR 2008 SC 78 in paragraph 16 it has been mentioned that the investigating officer is not divested of his power to further investigate a case in exercise of powers under section 173 (8) only because a charge-sheet has been filed. Further investigation was permissible even if an order of cognizance of offence has been passed by the Magistrate The ultimate probative value of the statements of the witnesses or co-accused, are matters for examination by the trial Court at the stage of consideration of the bail or trial. This Court in its writ jurisdiction cannot express an opinion, or adjudicate on the final evidentiary value of the material collected by the investigating agency. ;