CRMMO/620/2019 of MANMOHAN SINGH Vs STATE OF HP AND OTHERS on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMMO No. 620 of 2019Reserved on: 23.12.2022Decided 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, viceMr. Virender Thakur, Advocate.For the respondents :Mr. Shiv Pal Manhans,Additional Advocate General, forrespondents No. 1 to 4.

Mr. Nishant Khidtta, Advocate,vice Mr. V.D. Khidtta, Advocate,for respondents No. 5, 6, 7 and 9to 15.

Name of respondent No. 8stands deleted.

Virender Singh, Judge.

Petitioner-Manmohan Singh has filed the presentpetition, under Section 482 of the Code of Criminal Procedure 1Whether Reporters of local papers may be allowed to see the judgment? Yes.

(hereinafter referred to as ‘CrPC’), for seeking the followingsubstantive reliefs:

“(a) That the respondents No. 1 to 4 may very kindlybe directed to conduct inquiry into the matter in a fairand honest manner and they may further be directedto include the names of all the privaterespondents/accused persons mentioned in thisapplication, who have actively participated in thecommission of offence and some weapons were alsorecovered from them; (b) That the respondents No. 1 to 3 may very kindlybe directed to further make inquiry against the erringpolice official, who has conducted faulty investigationand intentionally and deliberately left out some of theculprits/accused persons who have activelyparticipated in the commission of offence anddisciplinary action is required to be initiated againstthem so that in future such like police officials may noact dishonestly and in an unfair manner;

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

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

3. As per the averments made in the complaint, some ofthe accused persons were having rods, bricks, sticks and excelblade and they had beaten the petitioner as well as his familymembers. They have forcibly entered in the house and alsothrown the valuable articles. They had also caused damage tothe shutter of the building.

4. On the basis of the said complaint, FIR No. 83 of2018, dated 15[th] August, 2018, under Sections 147, 148, 149,323 and 427 of the Indian Penal Code (hereinafter referred toas ‘IPC’). Apart from respondents No. 5 to 15, there were totaleighteen accused persons, as mentioned in the FIR. After theinvestigation of the case, the police has filed the charge sheetin the Court of learned ACJM, Court No. 1, Rohru, DistrictShimla, H.P., under Sections 147, 148, 149 and 323 of IPC, byarraying only seven persons, as accused and rest of thepersons, have not been mentioned, as accused, in the chargesheet.

5. Highlighting the incident that it was found duringthe investigation that one of the respondents, namely Sanish Kumar, has attacked one of the members of the petitioner’sfamily with excel blade, but, the said person has not beenchallaned by the Investigating Officer.

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

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

8. When put on notice, respondents No. 1 to 4 havecontested the petition, by filing the reply, in which it has beensubmitted that the investigation of the case has been carriedin a professional manner, without any bias and malice andafter completion of the investigation, the charge sheet againstaccused persons, namely (1) Pinku Ram, (2) Kanta Devi,(3) Shyam Lal, (4) Supun Lal, (5) Panna Lal; (6) Amar Nathalias 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 ofoffences punishable under Sections 147, 148, 149 and 323 ofIPC.

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

10. Perusal of the documents annexed with the petitionshows that the police has filed the charge-sheet, in this case,against seven persons, namely, (1) Pinku Ram, s/o Sh. BankaRam; (2) Kanta Devi, w/o Pinku Ram; (3) Shyam Lal, s/o LateSh. Taflu Ram; (4) Supun Lal, s/o Late Sh. Taflu Ram;(5) Panna Lal, s/o Late Sh. Taflu Ram; (6) Amar Nath aliasRaju, s/o Late Sh. Taflu Ram; and (7) Suresh Kumar, s/o LateSh. Sadhu Ram.

11. No doubt, in the FIR, names of total eighteen personshave been mentioned as accused, however, after theinvestigation of the case, the police found the involvement ofonly 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 Section482 CrPC, as prayed in the petition.

13. The charge sheet filed by the police is under activeconsideration of the Court of competent jurisdiction and thepolice has submitted the challan against the above-mentionedaccused, after finding their involvement in the alleged crime.The petitioner is unable to make out a case where anydirection to re-investigate the case can be issued, as, thepetitioner can resort to the provisions, as contained in Section190 CrPC as well as 319 CrPC, if the involvement of the otheraccused persons is found by the Court of competentjurisdiction.

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

319. Power to proceed against other personsappearing to be guilty of offence. - (1)Where, inthe course of any inquiry into, or trial of, an offence, itappears from the evidence that any person not beingthe accused has committed any offence for which suchperson could be tried together with the accused, theCourt may proceed against such person for the offencewhich he appears to have committed.

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

(3) Any person attending the Court, although notunder arrest or upon a summons, may be detained bysuch Court for the purpose of the inquiry into, or trialof, the offence which he appears to have committed.

(4) Where the Court proceeds against any personunder sub- section (1), then-

(a) the proceedings in respect of such person shallbe commenced a fresh, and the witnesses re-heard; (b)subject to the provisions of clause (a), the casemay proceed as if such person had been anaccused person when the Court took cognizanceof the offence upon which the inquiry or trial wascommenced.

15. The Hon’ble Supreme Court, in a case, titled as Samaj Parivartan Samudaya and others versus State ofKarnataka and others, reported in (2012) 7 SupremeCourt Cases 407, has elaborately discussed the powers of theCourt, which is trying the offence(s), to summon the person(s),who even has/have not been charge-sheeted. The relevantportion of the judgment is reproduced, as under:

“27. Once the investigation is conducted inaccordance with the provisions of the CrPC, a policeofficer is bound to file a report before the Court ofcompetent jurisdiction, as contemplated underSection 173 CrPC, upon which the Magistrate canproceed to try the offence, if the same were triable bysuch Court or commit the case to the Court ofSessions. It is significant to note that the provisions ofSection 173(8) CrPC open with non-obstantelanguage that nothing in the provisions of Section173(1) to 173(7) shall be deemed to preclude furtherinvestigation in respect of an offence after a reportunder sub-Section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), wherecharge-sheet has been filed, that Court also enjoys thejurisdiction to direct further investigation into theoffence. {Ref., Hemant Dhasmana v. Central Bureauof Investigation & Anr.5 [(2001) 7 SCC 536]}. Thispower cannot have any inhibition including suchrequirement as being obliged to hear the accusedbefore any such direction is made.

28. It has been held in Shri Bhagwan SamardhaSreepada Vallabha Venkata Vishwandha Maharaj v.State of Andhra Pradesh and Ors.6 [JT 1999 (4) SC537] that the “casting of any such obligation on the Courtwould only result in encumbering the Court withthe burden of searching for all potential accusedto be afforded with the opportunity of beingheard.”

29. While the trial Court does not have inherentpowers like those of the High Court under Section 482of the CrPC or the Supreme Court under Article 136of the Constitution of India, such that it may orderfor complete reinvestigation or fresh investigation of acase before it, however, it has substantial powers inexercise of discretionary jurisdiction under Sections311 and 391 of CrPC. In cases where cognizance hasbeen taken and where a substantial portion ofinvestigation/trial have already been completed andwhere a direction for further examination would havethe effect of delaying the trial, if the trial court is ofthe opinion that the case has been made out foralteration of charge etc., it may exercise such powerswithout directing further investigation. {Ref. SasiThomas v. State & Ors.7 [(2006) 12 SCC 421]}.

30. Still in another case, taking the aid of the doctrineof implied power, this Court has also stated that anexpress grant of statutory power carries with it, bynecessary implication, the authority to use allreasonable means to make such statutory powereffective. Therefore, absence of statutory provisionempowering Magistrate to direct registration of anFIR would not be of any consequence and theMagistrate would nevertheless be competent to direct registration of an FIR. {Ref. Sakiri Vasu v. State ofUttar Pradesh & Ors.8 [(2008) 2 SCC 409]}.

31. Thus, the CrPC leaves clear scope for conductingof further inquiry and filing of a supplementarycharge sheet, if necessary, with such additional factsand evidence as may be collected by the investigatingofficer in terms of sub-Sections (2) to (6) of Section 173CrPC to the Court. To put it aptly, furtherinvestigation by the investigating agency, afterpresentation of a challan (charge sheet in terms ofSection 173 CrPC) is permissible in any caseimpliedly but in no event is impermissible.

32. A person who complains of commission of acognizable offence has been provided with two optionsunder Indian Criminal jurisprudence. Firstly, he canlodge the police report which would be proceededupon as afore- noticed and secondly, he could file acomplaint under Section 200 CrPC, whereupon theMagistrate shall follow the procedure provided underSections 200 to 203 or 204 to 210 under Chapter XVand XVI of the CrPC. In the former case, it is uponthe police report that the entire investigation isconducted by the investigating agency and the onus toestablish commission of the alleged offence beyond319. Power to proceed against other personsappearing 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 anyperson not being the accused has committed anyoffence for which such person could be tried togetherwith the accused, the Court may proceed against suchperson for the offence which he appears to havecommitted.

(2) Where such person is not attending the Court, hemay be arrested or summoned, as the circumstancesof the case may require, for the purpose aforesaid.(3) Any person attending the Court, although notunder arrest or upon a summons, may be detained bysuch Court for the purpose of the inquiry into, or trialof, the offence which he appears to have committed.

(4) Where the Court proceeds against any personunder sub- section (1), then- (a) the proceedings in respect of such person shall becommenced a fresh, and the witnesses re- heard; (b) subject to the provisions of clause (a), the case mayproceed as if such person had been an accused personwhen the Court took cognizance of the offence uponwhich the inquiry or trial was commenced,reasonable doubt is entirely on the prosecution. In acomplaint case, the complainant is burdened with theonus of establishing the offence and he has to leadevidence before the Court to establish the guilt of theaccused. The rule of establishing the charges beyondreasonable doubt is applicable to a complaint case aswell.

33. The important feature that we must notice for thepurpose of the present case is that even on acomplaint case, in terms of Section 202, theMagistrate can refer the complaint to investigation bythe police and call for the report first, deferring thehearing of the complaint till then.

34. Section 210 CrPC is another significant provisionwith regard to the powers of the Court whereinvestigation on the same subject matter is pending.It provides that in a complaint case where anyenquiry or trial is pending before the Court and inrelation to same offence and investigation by thePolice is in progress which is the subject matter of theenquiry or trial before the Court, the Magistrate shallstay the proceedings and await the report of theinvestigating agency. Upon presentation of the report,both the cases on a Police report and case institutedon a complaint shall be tried as if both wereinstituted on a Police report and if the report relatesto none of the accused in the complaint it shallproceed with the enquiry/trial which had been stayedby it. The section proceeds on the basis that acomplaint case and case instituted on a police reportfor the commission of the same offence can proceedsimultaneously and the Court would await the Policereport before it proceeds with the complaint in suchcases. The purpose again is to try these cases together,if they are in relation to the same offence with theintent to provide a fair and effective trial. The powersof the trial court are very wide and the legislativeintent of providing a fair trial and presumption ofinnocence in favour of the accused is the essence of thecriminal justice system.

35. The Court is vested with very wide powers inorder to equip it adequately to be able to do completejustice. Where the investigating agency has submittedthe charge sheet before the court of competentjurisdiction, but it has failed to bring all the culpritsto book, the Court is empowered under Section 319Cr.P.C. to proceed against other persons who are notarrayed as accused in the chargesheet itself. TheCourt can summon such suspected persons and trythem as accused in the case, provided the Court issatisfied of involvement of such persons incommission of the crime from the record and evidencebefore it.

36. We have referred to these provisions and the scopeof the power of the criminal court, in view of theargument extended that there are certain complaintsfiled by private persons or that the matters arepending before the court and resultantly this Courtwould be not competent in law to direct the CBI toconduct investigation of those aspects.

37. We may notice that the investigation of a case orfiling chargesheet in a case does not by itself bring theabsolute end to exercise of power by the investigatingagency or by the Court. Sometimes and particularlyin the matters of the present kind, the investigatingagency has to keep its options open to continue withthe investigation, as certain other relevant facts,incriminating materials and even persons, other thanthe persons stated in the FIR as accused, might beinvolved in the commission of the crime. The basicpurpose of an investigation is to bring out the truthby conducting fair and proper investigation, inaccordance with law and ensure that the guilty arepunished.”

16. The prerogative of the investigation is of the police.

Although, much has been stated against the InvestigatingOfficer, but, in the absence of any material to substantivethose allegations, this Court refrains itself from commenting upon the manner, in which the investigation has beenconducted. Moreover, when an equal and efficacious remedy isavailable to the complainant-petitioner, to get those personsimpleaded as accused, if their involvement is found in theevidence led by prosecution witnesses, then, no relief underSection 482 of the CrPC can be given to the petitioner, in thepresent case.

17. Consequently, the petition is dismissed.

Conclusion

18. Records be sent back.

December 30, 2022

( rajni )

( Virender Singh ) Judge