Punjab-Haryana High Court
Jyoti vs State Of Haryana And Others on 13 August, 2012
Author: Daya Chaudhary
Bench: Daya Chaudhary
1
Crl. Misc. No.M-9535 of 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No.M-9535 of 2012
DATE OF DECISION: August 13,2012
Jyoti .....Petitioner
versus
State of Haryana and others ......Respondents
CORAM:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr.P.K.Mutneja, Advocate for the
petitioner.
Mr.S.S.Nara, Senior DAG, Haryana.
DAYA CHAUDHARY,J.
This is an unfortunate incident which has shaken the credibility of the investigating agency and weakens the faith of common man in the role of Police which is supposed to protect the lives and liberty of citizens and to maintain law and order in the society.
The petitioner (now deceased) claimed to have completed B.Com from Delhi University and CA from ICAI. On the fateful day i.e. 24.7.2011 at about 6.30 p.m. she along with her friend Ritu was returning from market to her home. After crossing the railway station, they were on their way to home, four-five mischievous persons emerged in front of them. Joginder alias Badde while holding the hands, touched her face and took her to a 2 Crl. Misc. No.M-9535 of 2012 vacant plot. The clothes of the petitioner were torn and an Attempt was made to commit rape upon her. When an alarm was raised, many persons gathered around them and seeing them, Joginder alias Badde took out his pistol and threatened to kill them in case there being any intervention. Ankit struck with knife on the nose of the petitioner. Amit, Lala and an unknown person had torn the clothes of the petitioner. Even they also tried to commit rape upon her. The petitioner claims to identify the unknown person, in case he was brought before her. Ritu managed to run away from the spot. She called her mother-Kusam. However, Ritu and her mother Kusam were also given beatings when they tried to intervene. That being the position, Kusam called her husband and also telephoned the Police Control Room. Finding that the police is arriving at the spot, all the aforesaid accused managed to run away from the spot. The petitioner became unconscious and was taken to Civil Hospital, Gurgaon. She remained admitted from 24.7.2011 to 29.7.2011.
According to the case of the petitioner, she made various complaints to the police authorities for initiation of action against the accused persons. Even the representations dated 6.8.2011 and 8.8.2011 met with the fate of silence. However, the accused persons did not mend their ways. On 8.8.2011 when the petitioner along with 3 Crl. Misc. No.M-9535 of 2012 Ritu was going to college, the accused persons again stopped them. A threat was extended in abusive language that in case any complaint is made, she would be abducted. Such type of threat continued for days together. Failure in getting the justice from the police and having left with no other option, the petitioner approached the Court by way of filing complaint. Vide order dated 12.8.2011, the Magistrate issued a direction under Section 156(3) for registration of FIR. Accordingly, FIR No.98 dated 18.8.2011 under various sections was registered. Taking the version of the accused persons to be true, the cancellation report was submitted. Rather taking action against the accused persons, the police, in connivance with the accused persons, concocted a false story that on the fateful day, some dispute regarding dog took place. When the dog started running behind the playing children, Joginder asked Vicky to chain the dog. However, the boy did not chain the dog and indulged in a fight with Joginder and called his mother. Meantime, wife of Joginder also came on the spot and hot words were exchanged between the parties. The petitioner also reached at the spot and tried to pacify the matter. In that process, she fell down and sustained some injuries.
The petitioner being not satisfied with the cancellation report, filed a protest petition 4 Crl. Misc. No.M-9535 of 2012 which was allowed and accordingly, the accused persons were summoned.
It may be relevant to mention here that the petitioner was residing with her uncle Rajender Singh for the purpose of study. Basically, she belongs to Rohtak.
The uncle of the petitioner was continuously receiving threats for compromise
either from the side of the accused persons or the police. When he refused, a false FIR was registered on the statement of Urmila, who is relative of the accused. In this regard, various communications were addressed to the Commissioner of Police, Gurgaon.
From 21.3.2012 to 24.3.2012, police personnel came to the home of the petitioner in order to force her to come to the police station and got her signatures on some blank papers with regard to quashing of FIR. On seeing those papers in the police station, the petitioner was shocked that the papers pertain to withdrawal of the complaint. On her being refused, the petitioner was threatened by the police personnel that she would be implicated in a false case.
In this manner, the police personnel, in connivance with the accused, threatened time and again for dire consequences.
Defending the cancellation report, the stand taken by the respondents was, that during 5 Crl. Misc. No.M-9535 of 2012 investigation, the story of the petitioner was found to be false. In fact, there was some brawl with regard to biting of dog. On 25.7.2011, a telephonic message was received from General Hospital, Gurgaon that the petitioner and Joginder were admitted in the hospital. The petitioner was declared unfit to make the statement, and, therefore, her statement was recorded on 26.7.2011 wherein, she refused to get her statement recorded but expressed her willingness to give her statement in writing. Statement of Joginder was recorded on 28.7.2011. Taking preventive measure, accused Joginder was arrested under Section 107/151 CrPC on 8.8.2011. After preparing the Calandra, it was sent to DCP (HQ), Gurgaon for adjudication. However, the petitioner approached the Magistrate who vide order dated 12.8.2012 ordered for registration of FIR. Accordingly, FIR No.98 dated 18.8.2011 under Sections 323,324,354,376,511 IPC and 3/33/89 of Scheduled Castes and Scheduled Tribes Act and 25/54/59 of the Arms Act was registered at Police Station Rajendra Park, Gurgaon. Investigation was conducted by Rajesh Duggal, Assistant Commissioner Police, Udyog Vihar, Gurgaon. During investigation, glaring contradictions were found in the statement given in the hospital and complaint filed in the Court and there being no incriminating evidence, the said matter was sent to Station House Officer, Police 6 Crl. Misc. No.M-9535 of 2012 Station Rajendra Park, Gurgaon for preparing the cancellation report. Accordingly, the cancellation report was prepared on 24.11.2011.
Learned counsel for the petitioner has brought to the notice of the Court that inspite of making representation by the petitioner, no action was taken and threats continued regarding abduction or implication of her or family members in a false case. An affidavit was also prepared but same could not be brought on record. Ultimately she was killed along with Santra Devi and Vinita as apprehended by her. An FIR No.109, dated 23.4.2012, under Sections 302/307 IPC was registered at Police Station Mahendra Park, Jahangir Puri, North-West, Delhi against Raj Kishor. The said case was stated to be registered on the basis of statement of Satya Parkash, the brother of the petitioner. Accused, namely, Raj Kishore, being juvenile, was produced before the Juvenile Justice Board. On that basis, it was maintained that both the FIRs i.e. FIR No.98 and FIR No.109 pertain to different incident altogether.
Feeling aggrieved by the action of the police, the petitioner approached this Court through the present petition.
Learned counsel for the petitioner submits that the investigation conducted by the police officer/official(s) clearly reveals that it is merely an eye wash in order to protect the accused 7 Crl. Misc. No.M-9535 of 2012 persons. The petitioner narrated the version of his woeful story on lines aforementioned which has been duly supported by medical evidence. The accused persons not only at one point of time extended the threats to the petitioner and his uncle but also exerted pressure for withdrawing of the complaint by adopting one mode or other under the umbrella of police. Even an affidavit dated 24.11.2011, duly sworn by Notary, evinces that the Investigating Officer, namely, Rajesh Duggal, ACP was exerting pressure upon the petitioner as well as her uncle Rajinder Singh for withdrawal of the case, which is clear from the words that "in case any mis-happening takes place in future, for that the aforesaid ACP and related police officials are held to be responsible." What to talk of fair and impartial investigation, the protector of the society became the helper of the accused. For fair and impartial investigation, learned counsel prays that the investigation should be conducted by some independent agency.
Mr.Nara, Senior Deputy Advocate General, Haryana submits that the investigation has been conducted in a fair and impartial manner by the senior rank officer. However, finding no incriminating evidence, the cancellation report was submitted. The petitioner also availed of alternative remedy of filing the protest petition, wherein, accused persons were summoned to face 8 Crl. Misc. No.M-9535 of 2012 trial and, therefore, the present petition is not maintainable.
I have given my thoughtful consideration to the arguments of learned counsel for the parties.
The incident pertains to 24.7.2011. The petitioner was hospitalized for six days. She was running from pillar to post for redressal of her grievance. However, the respondents failed to initiate any action against the accused persons. As per case of the petitioner, even an attempt, with motive to get the favourable result, was made by adopting various modes of pressure. Sometimes police official/officer(s), the accused persons including their close relatives and confidents extended threats to achieve their goal. The only accused Joginder alias Badde was arrested, that too under Sections 107/151 CrPC. No action against the other accused persons was taken. That being the position, the petitioner approached the concerned Magistrate by way of complaint with the aforesaid allegations. The Magistrate ordered for registration of FIR and accordingly, the FIR was registered. However, the accused persons, in connivance with the police official/officer(s), got cancelled the FIR. Various representations were made to the highs-up, including the Commissioner of Police, Gurgaon, for taking action against the accused persons. Even uncle of petitioner, namely, 9 Crl. Misc. No.M-9535 of 2012 Rajender Singh vide his complaint dated 16.9.2011 addressed to the Commissioner of Police, Gurgaon, levelled allegations against the aforesaid Assistant Commissioner of Police and other police officials and relatives of the accused persons regarding threat to him and the petitioner for compromise by luring money.
Prima facie it appears that the police officer/official(s) by adopting different yardsticks exerted the pressure upon the petitioner and others to settle the score. Even the brother of the petitioner, who appeared before this Court on 25.7.2012 instructed the counsel for the petitioner as under:
".......Although this case has been argued by learned counsel for the petitioner stating the facts of the case. She has brought to the notice of the Court that FIR as stated by learned State counsel registered subsequently is not based on correct facts as complainant in FIR No.109 is brother of deceased- Jyoti, who has denied filing of any such complaint and has also stated that the said complaint has been forged by the police authorities just to save the accused persons in the earlier FIR. Learned counsel for the petitioner also submits that it is a 10 Crl. Misc. No.M-9535 of 2012 case of manipulation of the facts just to save the accused persons and also a case of inaction on the part of police authorities."
In this view of the matter, prima facie I am not satisfied with the version put forth by the respondents. A young girl, who is no more on this earth, was crying from the top of roof for justice but she failed to get the same. Even the Magistrate has issued process for arrest of the accused persons, but of no avail.
Having examined the rival submissions and having examined the facts and circumstances of the present case, I am persuaded to agree with the submissions made by the learned counsel appearing for the petitioner. Pendency of the matter before the Magistrate does not bar the inherent powers conferred upon this Court under Section 482 CrPC.
Faced with this difficulty, learned State Counsel, submits that let the matter be re- investigated by the Crime Branch. This step would also facilitate a fair and impartial enquiry/investigation. Learned counsel for the petitioner also submits that re-investigation should be conducted by some senior rank officer(s), not below the rank of Indian Police Services, as the investigation has already been conducted by the rank of Assistant Commissioner of Police. I find substance in the argument of learned counsel. 11
Crl. Misc. No.M-9535 of 2012 Accordingly, the present petition is disposed of with a direction to the Director General of Police, Haryana to nominate two officers of Crime Branch, not below the rank of Indian Police Services, who shall re-investigate the matter on following points:
(i) Why the FIR in the case was not
registered well in time by the
police when the offence is
cognizable. If there is any lapse on the part of the police, then who is responsible for that.
(ii) Under what circumstances, only
accused Joginder alias Badde was
arrested only under Sections
107/151/CrPC, whereas, there were
allegations of attempt to rape,
beatings, threatening etc. and what was the reasons for not initiating any action against other co accused.
(iii) Under what circumstances/evidence,
FIR No.98 dated 18.8.2011 was
cancelled.
(iv) As to who and how the pressure was
exerted upon the petitioner and
others for patching up the matter.
(v) Whether the FIR No.109 dated
23.4.2012 registered at Police
Station Mahendra Park, Jahangir
12
Crl. Misc. No.M-9535 of 2012
Puri, North-West, Delhi has any
relevancy because in an affidavit
dated 24.11.2001, the petitioner
apprehended that in case any mis-
happening takes place, then ACP and other police officials were responsible. Moreover, the brother of the petitioner has also instructed his counsel that the FIR No.109 is manipulation of the accused persons.
(vi) Whether there is any
evidence/material to attract the
penal/criminal consequences qua the accused persons and others.
The report in this regard shall be submitted by the Investigating Agency before this Court on or before 19.11.2012.
I wish to make it clear that nothing in the order shall be construed as an opinion touching the re-investigation to be conducted by the Investigating Agency.
August 13,2012 (DAYA CHAUDHARY) KD JUDGE