Punjab-Haryana High Court
Jagga Singh Brar vs State Of Haryana And Others on 14 May, 2010
Author: Daya Chaudhary
Bench: Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Misc. No.M-79909 of 2006
Date of decision: 14.5.2010
Jagga Singh Brar
......Petitioner
Vs.
State of Haryana and others
...Respondents
CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.Baldev Singh Sr. Advocate with
Mr.Dipinder Singh, Advocate, for the petitioner.
Mr.S.S.Mor, Senior Deputy Advocate General, Haryana.
Mr.N.S.Shekhawat, Advocate, for Rakesh Kumar.
****
ORDER
The present petition has been filed under Section 482 Cr.P.C. by Jagga Singh Brar for conducting fair investigation in case FIR No.81 dated 29.4.2006 under Sections 302/307/120-B IPC and Section 25 of Arms Act, registered at Police Station Dabwali by CBI or some other independent agency.
Briefly, the facts of the case as mentioned in the petition are that the brother of the petitioner Chand Singh Brar was the President of Dabwali Block Youth Congress Committee. In the year 1999, Indian National Lok Dal came into power in State of Haryana and Shri Om Parkash Chautala became Chief Minister. The family members of Shri Om Parkash Chautala were having political rivalry with his brother who opposed Chautala family in the Assembly election. On coming to power, his two sons Ajay Singh, Abhey Singh and one Vinod Kumar Arora and other workers of his party Crl.Misc. No.M-79909 of 2006 [2] started to settle their scores. A number of FIRs were got registered at the behest of Abhey Singh Chautala and Vinod Kumar Arora against his brother Chand Singh Brar. His brother was apprehending threats to his personal life and property and he sent many telegrams and representations to various State authorities but no action was taken. Chand Singh Brar was murdered on 29.4.2006. A complaint was made by the petitioner and FIR No.81 dated 29.4.2006 was registered at Police Station Sadar Dabwali under Sections 302/307/120-B IPC and Section 25/54/59 of Arms Act. As per complaint filed by the petitioner, his brother Chand Singh Brar was murdered in a deep rooted conspiracy as 3-4 days prior to his murder, Abhey Singh Chautala and Vinod Kumar Arora had threatened him and his brother Chand Singh Brar. It was also stated by the petitioner that the murder was not for money as everything was found intact including his mobile, cash, gold chain etc. but it was a murder due to political rivalry under a conspiracy hatched at the instance of Abhey Singh Chautala and Vinod Kumar Arora. The motive behind the murder was that his brother opposed Abhey Singh Chautala in Assembly Election of Rori Constituency and Vinod Kumar Arora was a close associate of Abhey Singh Chautala.
The present petitioner raised the plea that no action was being taken by the police in the matter and the main accused has not been arrested and inquiry was also not being conducted properly.
Notice of motion was issued on 19.12.2006.
Mr.Baldev Singh, learned senior counsel for the petitioner submits that many telegrams and representations (annexed as Annexures P-1 to P-9 with the petition) were sent by Chand Singh Brar himself Crl.Misc. No.M-79909 of 2006 [3] before his death wherein it was specifically mentioned that he was facing danger to his life and property at the instance of Abhey Singh Chautala and false cases were registered against him as he opposed him in the Assembly Election. It was also mentioned that he could be murdered by these persons and in case, he is murdered, these persons would be responsible.Mr.Baldev Singh further argued that a number of FIRs were registered against the brother of the petitioner at the instance of Abhey Singh Chautala. Learned counsel further submitted that police had not conducted the investigation in a fair and proper manner as the main accused, at whose instance the murder was committed, was not initially arrested and every effort was being made to help Abhey Singh Chautala and his associates. It was also mentioned in the affidavit submitted by Mr.Vikas Arora, S.P.Sirsa that the police was not able to conduct investigation properly because of limited resources with the police and he had no objection if the investigation of the case is conducted by the CBI. Mr.Baldev Singh also placed reliance on the judgments of Hon'ble the Supreme Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and others AIR 2004 SC 2078, Rubabbuddin Sheikh v. State of Gujarat and others 2010(1) RCR (Criminal) 738, Punjab & Haryana High Court Bar Association Chandigarh v. State of Punjab and others 1994(1) R.CR. (Criminal) 205, Kashmeri Devi v. Delhi Administration and another 1988 Crl.L.J. 1800, and judgment of this Court in Raj Rani v. State of Punjab 2000(4) R.C.R. (Criminal) 241, Rajni Vishram Patil v. State of Maharashtra and others 2007 (5) ABR (NOC) 707 (MOB), Ram Gopal v. State of U.P. And others 2009 (2) ALJ (NOC) 230 (All.) in support of his contention.
Crl.Misc. No.M-79909 of 2006 [4]
Mr. Mor, learned counsel for the State, submited that FIR No.81 dated 29.4.2006 was registered under Sections 302/307/120-B IPC and Section 25 of Arms Act and accused Vimal Kumar, Sushil Kumar, Satya Narain alias Raju and Rakesh Kumar were arrested on 5.5.2006 and challan against them was presented on 1.8.2006. Accused Satya Narain was discharged by the Court. Accused Pardeep Kumar was arrested on 5.12.2007and accused Vinod Kumar was arrested on 18.2.2008. Supplementary challan against them was put up in the Court on 15.12.2008. Mohammad Shah Alam from UP and Abhey Singh Chautala were also named as accused in the aforesaid FIR and Satender Kumar alias Rinku Tiwari and Viswas alias Vasu alias Nepali were also identified as accused by the complainant on the basis of photographs being companion of Mohammad Shah Alam. After registration of the case against them, Mohd. Shah Alam and Satender died in separate encounters by the police in the state of UP. Accused Vishwas alias Vasu could not be traced out. Accused Abhey Singh Chautala joined the investigation on 12th December, 2008 and in the investigation his statement was recorded along with statements of other witnesses and he was not found involved. Mr.Mor also submitted that learned counsel for the petitioner had relied upon a CD but the original CD was not given despite written communications. Mr.Mor further argued that the trial is at the fag end and the same is likely to conclude. There are total 63 witnesses out of which 31 have been examined and 10 witnesses have been given up and one witness has expired. The accused who are facing trial for the last many years would have to go back to face trial again and it would be unfair to them to face the agony again Crl.Misc. No.M-79909 of 2006 [5] and their right to speedy trial would be frustrated.
Mr.Shekhawat, learned counsel appearing on behalf of accused Rakesh Kumar submitted that accused are facing the agony of protracted trial since 2006 and if fresh investigation is allowed to be conducted at this stage, it would be a futile exercise and the same would not not be in the interest of either of the parties. Mr.Shekhawat also submitted that fair investigation was conducted by the police and no further investigation is required. He relied upon the judgment of the Hon'ble Supreme Court in D.Venkatasubramaniam and others v. M.K.Mohan Krishnamachari and another 2009(4) R.C.R. (Criminal) 318 and judgments of this Court in Phoolwati v. State (Union Territory of chandigarh) and others 2008 (1) R.C.R. (Criminal) 167 and Bharat Inder Singh Chahal v. State of Punjab 2007(3) R.C.R.(Criminal) 427 in support of his contention.
I have heard the arguments of learned counsel for the parties and have also perused the documents available on the file.
In the present case, FIR was registered on the basis of complaint made by the petitioner who is none else but real brother of the deceased. On the basis of investigation conducted by the police, as many as five accused namely, Sat Narayan alias Raju, Vimal Goyal, Sushil Kumar Rakesh Kumar and Pardeep Godara were arrested by the police and challan against Sat Narayan, Vinod Kumar, Suresh Kumar and Rakesh Kumar was filed. Accused Mohd. Shah Alam was declared PO. Accused Vinod Arora surrendered on 18.2.2008 and Pardeep Godara on 24.12.2007 respectively and they joined the investigation. Accused Mohd. Shah Alam was not arrested in-spite of efforts made by the police. Accused Mohd. Crl.Misc. No.M-79909 of 2006 [6] Shah Alam and Satinder died during the pendency of the proceedings and accused Vishwas alias Vasu alias Nepali could not be traced out so far. Initially, Abhey Singh Chautala joined the investigation on 12.12.2008 and again on 3.4.2009. During the course of proceedings, a CD was also produced by the complainant which was sent to FSL Madhuban and the same was further sent to C.F.S.L. Chandigarh and the complainant was asked to send the original CD but the original CD was not given by the complainant and he even refused to put his signature on the notice sent by the police. Mr.Baldev Singh learned Senior Counsel for the petitioner was not able to put forth any legal evidence against Abhey Singh Chautala or other accused for ordering further investigation and he did not produce any evidence in this regard and simply submitted that due to political rivalry many cases were registered against the deceased. Abhey Singh Chautala was specifically mentioned in the complaint but he was never arrested by the police. The investigation conducted by the police was not proper because of political influence and other considerations. Inspite of affording opportunities, Mr. Baldev Singh was not able to show any material for conducting fresh inquiry except mere allegations in the FIR. Even inspite of repeated queries by the Court, Mr. Baldev Singh was not able to pin-point anything from the statements of prosecution witnesses recorded during trial.
Now the question for consideration by this Court is whether the directions for further investigation can be issued by this Court at the stage when the trial is at the fag end and likely to conclude or the investigation by some independent agency is required when the Crl.Misc. No.M-79909 of 2006 [7] investigation has already been conducted by the police.
The complainant has filed the present petition with a prayer for transfer of investigation to some independent agency as police was not investigating the case properly against Abhey Singh Chautala, Vinod Kumar Arora, Pardeep Godara and Mohammad Shah Alam who are the main accused involved in the criminal conspiracy to commit murder of Chand Singh Brar. Mohammad Shah Alam who had been alleged to be close associate of Mukhtar Ansari and a Mafia Don of UP were also alleged to be involved in the murder. The grievance of the petitioner is that Abhey Singh Chautala was specifically named in the FIR as one of the conspirators but no action was taken against him by the police and similarly no action was taken against Vinod Kumar Arora and Pardeep Godara as they were not arrested by the police even on dismissal of their anticipatory bail applications.
As far as accused Shah Alam and Satinder are concerned, they died in police encounters. Initially Abhey Singh Chautala did not join investigation but subsequently he joined the investigation on 12.12.2008. Vinod Kumar Arora, Pardeep Godara were arrested by the police and they were granted bail by the Court and challan was also presented against both of them. As far as case of Abhey Singh Chautala is concerned, no incriminating evidence was found against him by the police and therefore no action was taken. Initially when the petition was filed in the year 2006, no document was placed on record with the petition except the representations and telegrams sent by the deceased but subsequently Crl.Misc.No.61844 M of 2009 was filed after a gap of about three years and Crl.Misc. No.M-79909 of 2006 [8] various documents were placed on record including the reply filed by Vikas Arora, Superintendent of Police, Sirsa. The emphasis of the petitioner in the main petition as well as in the Crl.Misc. is that Abhey Singh Chautala has specifically been mentioned in the FIR but police has not taken any action against him. As per reply submitted by the official respondents, it has been mentioned that no evidence has been found in the investigation to connect Abhey Singh Chautala with the alleged conspiracy to commit murder of Chand Singh Brar.
Now the sole question for consideration by this Court is whether re-investigation in this case can be ordered at this stage when the trial is at the fag end of its conclusion. There is nothing on record to show that investigation has not been fairly conducted by the police or the accused who were found innocent in the investigation were involved in the murder. Learned counsel for the petitioner has not been able to put-forth any evidence from the statement of the prosecution witnesses or to suggest that the investigation was not fairly conducted. Once the investigation has been conducted by the police and there is no evidence on record that the investigation was not fair or impartial, the petitioner was at liberty to avail legal remedy even at the time of framing of charge or recording of statements of the prosecution witnesses but those remedies available to him were not availed. Even in this petition there is nothing to show that the investigation was not fair. There is no nothing on record to prove the involvement of Abhey Singh Chautala or to show that he was wrongly found innocent or the investigation was not conducted in fair and impartial manner. Learned counsel for the petitioner has not been able to prove the Crl.Misc. No.M-79909 of 2006 [9] involvement of Abhey Singh Chautala. There is no ground to issue directions for reinvestigation of the case when the trial is likely to conclude. There are total 61 prosecution witnesses, out of which 32 have already been examined and 2 have been left out being unnecessary and 1 witness has expired during pendency of proceedings and statements of the remaining witnesses are yet to be recorded.
In Rajiv Ranjan Singh 'Lalan'(VIII) and another Vs. Union of India and others 2006 (6) SCC 613, it has been held by the Hon'ble Apex Court that on filing charge-sheet before the competent Court, the role of Investigating Agency should come to an end and the only remedy with the Court is to deal with the matters, including the scope of investigation, under Section 173(8) Cr.P.C. The relevant observations of the Hon'ble Apex Court are reproduced as under:
" It is thus clear from the above judgment that once a charge-sheet is filed in the competent Court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigating agencies concerned perform their function of investigating into the offences concerned comes to an end and thereafter, it is only the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8). We respectfully agree with the above view expressed Crl.Misc. No.M-79909 of 2006 [10] by this Court. In our view, monitoring of pending trial is subversion of criminal law as it stands to mean that the Courte behind the back ofd the accused is entering into a dialogue with the investigating agency. Therefore, there can be no monitoring, after the charge-sheet is filed."
The Hon'ble Apex Court in case of State of Bihar and another Vs. J.A.C. Saldanha and others 1980 (1) SCC 554 held that there is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. It was further held that investigation of an offence is the field exclusively reserved by the executive through the police department and State Government has superintendence over that. The role of investigating agency comes to an end when the challan is presented before the Court and the only remedy left is under Section 173(8) Cr.P.C. The Hon'ble Apex Court observed as under:
" Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendent over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits Crl.Misc. No.M-79909 of 2006 [11] report to the Court requesting the Court to take cognizance of the offence under Section 190 Cr.P.C, its duty comes to an end. On a cognizance of the offence being taken by the Court, the police function of investigation comes to an end subject to the provision contained in Section 173(8), then commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime. In the circumstances, the judgment and order of the High Court was set aside by this Court."
The Hon'ble Apex Court in State of Karnataka Vs. M.Devendrappa and another 2002(1) R.C.R.(Criminal) 480 observed that while exercising powers under Section 482 Cr.P.C, the Court does not function as a Court of appeal or revision. Such power is to be exercised sparingly and ex debito justitiae to do real and substantial justice for the administration of which alone Courts exists. It has further been held that powers under Section 482 Cr.P.C. should be used with care, caution and sparingly and for the administration of justice only or to prevent abuse or injustice to the party. Similar view has been taken in judgment reported in M.C.Abraham and another vs. State of Maharashtra and others 2003 (1) R.C.R.(Criminal) 452 that judicial interference with discretion of the investigating authority to arrest or not to arrest the accused, should not be exercised mechanically but with caution.
Crl.Misc. No.M-79909 of 2006 [12]
The Hon'ble Apex Court as well as this Court have held in various judgments that speedy trial is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 of the Constitution of India and it is a constitutional obligation of the State to devise such a procedure which ensures speedy trial of the case. The Hon'ble Apex Court in Manka Gandhi Vs. Union of India AIR 1978 SC 597 and Hussain Ara Khatun Vs. State of Bihar AIR 1979 SC 1360 has observed that speedy trial is implicit in the broad sweep and the context of Article 21 of the Constitution of India. In the case of State of Bihar Vs. Maksudan Singh AIR 1986 Patna 38, the Hon'ble Apex Court observed as under:
" To conclude on this aspect the answer to the question posed at very outset is rendered in the affirmative and it is held that the constitutional right of the accused to a speedy public trial in all criminal prosecutions now flowing from Article 21 of the Constitution by virtue of a precedential mandate is identical in the context with the expressed constitutional guarantee inserted by the sixth amendment in the American Constitution."
In case the prayer of the petitioner for reinvestigation is allowed at this stage, the right of speedy trial guaranteed to the accused under Article 21 of the Constitution of India shall be violated specially when the trial is about to conclude. Moreover, it would be a de novo trial which is not permissible under law. Moreover, all the accused have already disclosed their defence and have even put suggestions to prove witnesses. Crl.Misc. No.M-79909 of 2006 [13] The investigating agency as well as the petitioner have already come to know about the defence of the accused at this stage and if the reinvestigation is ordered, there would be padding in the investigation and the investigation cannot be fair. It has been held in a number of judgments that no order should be passed against any accused without affording any opportunity of hearing.
The present petition is pending for the last more than 3 years and the alleged accused have not been arrayed as respondents. The Hon'ble Supreme Court in case Devine Retreat Center vs. State of Kerala 2008(2) R.C.R.(Criminal) 373 has held as under:
" We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case in hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any Court without providing a reasonable opportunity of being heard to a person likely to be affected by such order and particularly when such order results in drastic consequences of effecting one's own reputation."
Similar observations were made by the Hon'ble Supreme Court in the case of 2009(4) R.C.R(Criminal) 318.
Crl.Misc. No.M-79909 of 2006 [14]
It is clear from the judgments cited above that the Court should not intervene in the matters of investigation which under the scheme of Cr.P.C. has been vested in the police authorities but an exception has also been made wherein, in certain circumstances, Court can intervene in order to do justice to the parties. This rare interference should be to correct injustice to the party or to check failure of injustice, if it is necessary to prevent injustice done to the party on account of intervention of influential persons. However, in the present case, the learned counsel for the petitioner has not been able to make out a case where the Court can interfere in the investigation on the ground that the investigation has not been fairly conducted and the same should be handed over to CBI or any other independent agency. The plea for further investigation is not tenable at the stage when the trial is likely to conclude soon . The petitioner has also not availed the opportunities available at various stages of trial and even at this stage also, nothing has been brought on record, even after recording the statements of 32 prosecution witnesses, that the alleged accused were a party to commission of murder or they were wrongly found innocent. Moreover, the other accused are facing trial since April 2006.
Keeping in view the facts and circumstances of the present case, detailed discussion and the legal position as mentioned above, there is no merit in the contentions raised by the learned counsel for the petitioner and the petition being devoid of any merit, is dismissed.
(DAYA CHAUDHARY) JUDGE May 14, 2010.
raghav Crl.Misc. No.M-79909 of 2006 [15]