CRMMO/620/2019 on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMMO No. 620 of 2019 Reserved on: 23.12.2022 Decided on : 30.12.2022 Manmohan Singh

…Petitioner Versus State of Himachal Pradesh & others …Respondents

Coram

The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Arun Kumar, Advocate, vice Mr. Virender Thakur, Advocate. For the respondents : Mr. Shiv Pal Manhans, Additional Advocate General, for respondents No. 1 to 4. Mr. Nishant Khidtta, Advocate, vice Mr. V.D. Khidtta, Advocate, for respondents No. 5, 6, 7 and 9 to 15. Name of respondent No. 8 stands deleted. Virender Singh, Judge. Petitioner-Manmohan Singh has filed the present petition, under Section 482 of the Code of Criminal Procedure 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

(hereinafter referred to as ‘CrPC’), for seeking the following substantive reliefs: “(a) That the respondents No. 1 to 4 may very kindly be directed to conduct inquiry into the matter in a fair and honest manner and they may further be directed to include the names of all the private respondents/accused persons mentioned in this application, who have actively participated in the commission of offence and some weapons were also recovered from them; (b) That the respondents No. 1 to 3 may very kindly be directed to further make inquiry against the erring police official, who has conducted faulty investigation and intentionally and deliberately left out some of the culprits/accused persons who have actively participated in the commission of offence and disciplinary action is required to be initiated against them so that in future such like police officials may no act dishonestly and in an unfair manner;

(c) That respondents No. 1 to 3 may kindly be directed to conduct a fair and speedy investigation in the matter or in the alternative, the investigation may kindly be got conducted from some other independent agency, i.e. C.I.D./C.B.I. because in the present case, the people have lost faith in the police as the police has acted dishonestly and unfair manner;

2. The petition has been filed, on the ground that the petitioner, moved a complaint to police, disclosing therein that on 15th August, 2018, he alongwith his sister and cousin brothers, was present, in their newly constructed house, situated at Chirgaon. Respondents No. 5 to 15, alongwith some other 60-70 persons, had attacked with rods and bricks and started beating them with an intention to kill the petitioner as well as his relatives.

3. As per the averments made in the complaint, some of the accused persons were having rods, bricks, sticks and excel blade and they had beaten the petitioner as well as his family members. They have forcibly entered in the house and also thrown the valuable articles. They had also caused damage to the shutter of the building.

4. On the basis of the said complaint, FIR No. 83 of 2018, dated 15th August, 2018, under Sections 147, 148, 149, 323 and 427 of the Indian Penal Code (hereinafter referred to as ‘IPC’). Apart from respondents No. 5 to 15, there were total eighteen accused persons, as mentioned in the FIR. After the investigation of the case, the police has filed the charge sheet in the Court of learned ACJM, Court No. 1, Rohru, District Shimla, H.P., under Sections 147, 148, 149 and 323 of IPC, by arraying only seven persons, as accused and rest of the persons, have not been mentioned, as accused, in the charge sheet.

5. Highlighting the incident that it was found during the investigation that one of the respondents, namely Sanish

Kumar, has attacked one of the members of the petitioner’s family with excel blade, but, the said person has not been challaned by the Investigating Officer.

6. On the basis of the above facts, it is the case of the petitioner that respondent No. 4 has not conducted the investigation in a fair and transparent manner.

7. On the basis of the above facts, a prayer to grant the relief(s), so made in the petition, has been made by the petitioner.

8. When put on notice, respondents No. 1 to 4 have contested the petition, by filing the reply, in which it has been submitted that the investigation of the case has been carried in a professional manner, without any bias and malice and after completion of the investigation, the charge sheet against accused persons, namely (1) Pinku Ram, (2) Kanta Devi,

(3) Shyam Lal, (4) Supun Lal, (5) Panna Lal; (6) Amar Nath alias Raju; and (7) Suresh Kumar, has been filed in the Court, for the commission of offences punishable under Sections 147, 148, 149 of IPC and against accused-Suresh for commission of offences punishable under Sections 147, 148, 149 and 323 of IPC.

9. A specific stand has been taken by respondents No. 1 to 4 that in the investigation, involvement of other persons was not found. It is the further case of respondents No. 1 to 4 that Vikram Singh was medico-legally examined and spot map was prepared. Excel blade was taken into possession from accused-Suresh Kumar. Other contents of the petition have been denied.

10. Perusal of the documents annexed with the petition shows that the police has filed the charge-sheet, in this case, against seven persons, namely, (1) Pinku Ram, s/o Sh. Banka Ram; (2) Kanta Devi, w/o Pinku Ram; (3) Shyam Lal, s/o Late Sh. Taflu Ram; (4) Supun Lal, s/o Late Sh. Taflu Ram;

(5) Panna Lal, s/o Late Sh. Taflu Ram; (6) Amar Nath alias Raju, s/o Late Sh. Taflu Ram; and (7) Suresh Kumar, s/o Late Sh. Sadhu Ram.

11. No doubt, in the FIR, names of total eighteen persons have been mentioned as accused, however, after the investigation of the case, the police found the involvement of only the above-named seven persons.

12. In this factual background, the material question, which arises for determination, before this Court, is about the fact as to whether any direction can be issued, under Section 482 CrPC, as prayed in the petition.

13. The charge sheet filed by the police is under active consideration of the Court of competent jurisdiction and the police has submitted the challan against the above-mentioned accused, after finding their involvement in the alleged crime. The petitioner is unable to make out a case where any direction to re-investigate the case can be issued, as, the petitioner can resort to the provisions, as contained in Section 190 CrPC as well as 319 CrPC, if the involvement of the other accused persons is found by the Court of competent jurisdiction.

14. Bare perusal of Section 319 CrPC, which is reproduced as under, is the remedy, which is available to the petitioner, in this case:

319. Power to proceed against other persons appearing to be guilty of offence. - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

15. The Hon’ble Supreme Court, in a case, titled as Samaj Parivartan Samudaya and others versus State of Karnataka and others, reported in (2012) 7 Supreme Court Cases 407, has elaborately discussed the powers of the Court, which is trying the offence(s), to summon the person(s), who even has/have not been charge-sheeted. The relevant portion of the judgment is reproduced, as under: “27. Once the investigation is conducted in accordance with the provisions of the CrPC, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrPC open with non-obstante language that nothing in the provisions of Section 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (2) has been forwarded to the

Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref., Hemant Dhasmana v. Central Bureau of Investigation & Anr.5 [(2001) 7 SCC 536]}. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made.

28. It has been held in Shri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandha Maharaj v. State of Andhra Pradesh and Ors.6 [JT 1999 (4) SC 537] that the “casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard.”

29. While the trial Court does not have inherent powers like those of the High Court under Section 482 of the CrPC or the Supreme Court under Article 136 of the Constitution of India, such that it may order for complete reinvestigation or fresh investigation of a case before it, however, it has substantial powers in exercise of discretionary jurisdiction under Sections 311 and 391 of CrPC. In cases where cognizance has been taken and where a substantial portion of investigation/trial have already been completed and where a direction for further examination would have the effect of delaying the trial, if the trial court is of the opinion that the case has been made out for alteration of charge etc., it may exercise such powers without directing further investigation. {Ref. Sasi Thomas v. State & Ors.7 [(2006) 12 SCC 421]}.

30. Still in another case, taking the aid of the doctrine of implied power, this Court has also stated that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such statutory power effective. Therefore, absence of statutory provision empowering Magistrate to direct registration of an FIR would not be of any consequence and the Magistrate would nevertheless be competent to direct

registration of an FIR. {Ref. Sakiri Vasu v. State of Uttar Pradesh & Ors.8 [(2008) 2 SCC 409]}.

31. Thus, the CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-Sections (2) to (6) of Section 173 CrPC to the Court. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge sheet in terms of Section 173 CrPC) is permissible in any case impliedly but in no event is impermissible.

32. A person who complains of commission of a cognizable offence has been provided with two options under Indian Criminal jurisprudence. Firstly, he can lodge the police report which would be proceeded upon as afore- noticed and secondly, he could file a complaint under Section 200 CrPC, whereupon the Magistrate shall follow the procedure provided under Sections 200 to 203 or 204 to 210 under Chapter XV and XVI of the CrPC. In the former case, it is upon the police report that the entire investigation is conducted by the investigating agency and the onus to establish commission of the alleged offence beyond

319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced, reasonable doubt is entirely on the prosecution. In a complaint case, the complainant is burdened with the onus of establishing the offence and he has to lead evidence before the Court to establish the guilt of the accused. The rule of establishing the charges beyond reasonable doubt is applicable to a complaint case as well.

33. The important feature that we must notice for the purpose of the present case is that even on a complaint case, in terms of Section 202, the Magistrate can refer the complaint to investigation by the police and call for the report first, deferring the hearing of the complaint till then.

34. Section 210 CrPC is another significant provision with regard to the powers of the Court where investigation on the same subject matter is pending. It provides that in a complaint case where any enquiry or trial is pending before the Court and in relation to same offence and investigation by the Police is in progress which is the subject matter of the enquiry or trial before the Court, the Magistrate shall stay the proceedings and await the report of the investigating agency. Upon presentation of the report, both the cases on a Police report and case instituted on a complaint shall be tried as if both were instituted on a Police report and if the report relates to none of the accused in the complaint it shall proceed with the enquiry/trial which had been stayed by it. The section proceeds on the basis that a complaint case and case instituted on a police report for the commission of the same offence can proceed simultaneously and the Court would await the Police report before it proceeds with the complaint in such cases. The purpose again is to try these cases together, if they are in relation to the same offence with the intent to provide a fair and effective trial. The powers of the trial court are very wide and the legislative intent of providing a fair trial and presumption of innocence in favour of the accused is the essence of the criminal justice system.

35. The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice. Where the investigating agency has submitted the charge sheet before the court of competent jurisdiction, but it has failed to bring all the culprits to book, the Court is empowered under Section 319 Cr.P.C. to proceed against other persons who are not arrayed as accused in the chargesheet itself. The Court can summon such suspected persons and try them as accused in the case, provided the Court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it.

36. We have referred to these provisions and the scope of the power of the criminal court, in view of the argument extended that there are certain complaints filed by private persons or that the matters are pending before the court and resultantly this Court would be not competent in law to direct the CBI to conduct investigation of those aspects.

37. We may notice that the investigation of a case or filing chargesheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the Court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure that the guilty are punished.”

16. The prerogative of the investigation is of the police. Although, much has been stated against the Investigating Officer, but, in the absence of any material to substantive those allegations, this Court refrains itself from commenting upon the manner, in which the investigation has been conducted. Moreover, when an equal and efficacious remedy is available to the complainant-petitioner, to get those persons impleaded as accused, if their involvement is found in the evidence led by prosecution witnesses, then, no relief under Section 482 of the CrPC can be given to the petitioner, in the present case.

17. Consequently, the petition is dismissed.

18. Records be sent back.

( Virender Singh ) Judge December 30, 2022 ( rajni )