Himachal Pradesh High Court
______________________________________________________________________ vs State Of Himachal Pradesh And Others on 13 July, 2016
Bench: Rajiv Sharma, Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. WP No.: 10 of 2016
.
Reserved on: 05.07.2016
Date of Decision: 13.07.2016
______________________________________________________________________
Mohd. Sajid .....Petitioner.
Vs.
State of Himachal Pradesh and others ......Respondents.
of
Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
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Whether approved for reporting?1 No.
For the petitioner: Mr. Bimal Gupta, Senior Advocate, with
Mr. Vineet Vashishta, Advocate.
For the respondents: Mr. V. S. Chauhan, Addl. AG, with Mr.
Vikram Thakur and Mr. Puneet Rajta,
Dy. AGs.
Ajay Mohan Goel, J. :
By way of present petition filed under Article 226 of the Constitution of India read with Section 482 of Cr. P.C., the petitioner has inter alia prayed for issuing directions to respondent No. 1 to have the case registered under Sections 376 & 506 of the Indian Penal Code vide FIR No. 53 of 2015 dated 29.06.2015 at Police Station, Kala Amb further investigated/re-investigated from some independent agency or from an Officer not below the rank of Deputy Superintendent of Police and also to decide the complaint of the petitioner (P-7) and convey the decision to the Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:48:16 :::HCHP 2petitioner vis-à-vis action taken against respondent No. 5 on the said complaint. The petitioner has also prayed for quashing of order passed by the learned Special Judge, Sirmaur District at Nahan, H.P. in application .
No. 48-Cr.MP/4 of 2016 dated 09.03.2016 vide which, learned Special Judge, Sirmaur District at Nahan has dismissed the application filed by the present petitioner under Sections 173, 204 and 319 Cr. P.C.
2. An FIR has been registered at Police Station, Kala Amb, i. e.
of FIR No. 53 of 2015 dated 20.06.2015 under Sections 376 read with Section 506 of the Indian Penal Code as well as under Section 4 of POSCO Act. This FIR has been registered on the basis of complaint of the rt present petitioner who is a labourer. As per the contents of FIR, it has been alleged that the minor girl of the petitioner was raped by accused Mukesh, who allegedly drugged her and thereafter raped her. It is further mentioned in the FIR that when the minor girl of the complainant gained consciousness, she intimated the factum of her having been sexually abused by Mukesh to Vimal Tiwari, Bhardwaj Sir, Mamta Madam, Parkash Mehra and Vishnu. However, said persons instructed his daughter not to disclose this incident to any person otherwise she will not be given her wages and she will be killed. It is further stated in the FIR that accused Mukesh in conspiracy with Vimal Tiwari, Bhardwaj Sir, Mamta Madam, Parkash Mehra and Vishnu had raped his minor daughter and legal action be taken against all the above mentioned persons. A perusal of the report submitted by the Police on completion of investigation (P-3) dated 15.09.2015 demonstrates that on the basis of ::: Downloaded on - 15/04/2017 20:48:16 :::HCHP 3 complaint of the present petitioner, an FIR was registered under Sections 376 and 506 of the Indian Penal Code and Under Section 4 of the POSCO Act. The medical of the prosecutrix was conducted on 29.06.2015 and the .
opinion of the Medical Officer is to the effect that "there is nothing to suggest that sexual intercourse has not been done." It is further mentioned in the said report that demarcation of the spot was done in the presence of prosecutrix, her parents and Mausi and spot map was also of prepared. Inquiry was done. The workers of the factory were questioned in this regard, but there was no eye witness to the alleged incident.
Statements of the prosecutrix and her relatives were recorded under rt Section 161 Cr. P.C. and thereafter on 30.06.2015, the statement of the prosecutrix under Section 164 of Cr. P.C. was recorded in the Court of learned Judicial Magistrate 1st Class. Accused Mukesh Kumar was arrested on 30.06.2015 at 5:15 p.m. It is further mentioned in the report that persons mentioned in the statement made under Section 164 Cr.
P.C. by the prosecutrix, namely Mamta Kashyap, Vimal Tiwari, Vishnu Dev and Parkash Vohera were made to join the investigation and they were thoroughly investigated, however, all of them have stated that after alleged incident, the prosecutrix had not come to them and they have not coerced or intimidated the prosecutrix as alleged. It is also stated in the said report that during the course of investigation neither any witness nor any evidence has come into light which could fortify the allegations levelled by the prosecutrix in her statement under Section 164 Cr. P.C. against Mukesh or other workers named therein and due to lack of ::: Downloaded on - 15/04/2017 20:48:16 :::HCHP 4 evidence against these persons, they could not be arrested and on account of lack of evidence, the names of these persons have been kept in Column No. 12 of the challan so that if during the course of trial, any .
material evidence comes against these persons, then they can be called upon and prosecuted. It has also come on record that no evidence has come of the prosecutrix being given any further intimidation etc., therefore, Section 506 of the Indian Penal Code has been removed from of the case. It has also come in the said report that Salwar which the prosecutrix was wearing on the alleged date when the incident took place was not handed over to the police by her parents on the ground that they rt did not remember as to what were the clothes worn by the prosecutrix on that date. Accordingly, the challan has been submitted for prosecution of the accused under Section 376 of the Indian Penal Code read with Section 4 of POSCO Act.
3. An application was filed by the present petitioner under Sections 173, 204 and 319 Cr. P.C. in the Court of learned Special Judge, Sirmaur District at Nahan in which it was prayed that the learned Court may direct re-investigation of the case by an Officer not below the rank of Deputy Superintendent of Police and said officer may also be directed to take the clothes which the daughter of the complainant was wearing at the time of incident and the said clothes be sent for appropriate examination. This application has been dismissed by the learned Court below vide its order dated 09.03.2016 (P-6). Learned Court below has held that the application under Section 319 Cr. P.C. was not ::: Downloaded on - 15/04/2017 20:48:16 :::HCHP 5 maintainable at this stage as the said provisions can be invoked only when some evidence comes on record against some other persons other than the charged person. Accordingly, learned Court below held that the .
question of arraying some other person who were allegedly working in the factory as accused has to be considered only when the evidence has started and not at the stage of hearing on the charge. With regard to handing over of the clothes of the prosecutrix, it has been held by the of Court below that the doctor had specifically mentioned in the MLC that the clothes have been changed and these were not brought before the doctor. It further held that nothing prevented the complainant from rt producing the clothes before the doctor, if they were preserved in the same state. Learned Court also held that there is nothing on record to show that the complainant had tried to produce the same before the Investigating Officer or even before the Superintendent of Police and after about 8-9 months of the incident, learned Court below did not think it fit to pass any directions to the Investigating Officer as prayed for. The learned Court below has further held that the complainant will be free to approach the police authorities for further investigation in terms of Section 173(8) Cr. P.C. and make appropriate prayer, but in the facts and circumstances of the case, the lower Court does not thinks it fit to pass any directions. On these basis, the said application filed by the complainant has been rejected.
4. We have heard the learned counsel for the parties and also gone through the records of the case.
::: Downloaded on - 15/04/2017 20:48:17 :::HCHP 65. Section 173(8) of the Code of Criminal Procedure provides as under:
"173(8) Nothing in this Section 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 and whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such of evidence in the form prescribed; and the provisions of sub-sections (2) and (6) shall, as far as may be, apply in relation to such report or reports as they apply in rt relation to a report forwarded under sub-section (2).
6. The provisions of Section 173(8) of the Code of Criminal Procedure are invoked when after submission of a report under Section 173(2) Cr. P.C., further evidence comes into the notice of the investigating officer which may call for further investigation in the matter. In these circumstances, an application is filed before learned Magistrate seeking permission for further investigation of the matter on the basis of such further evidence obtained by the investigating officer whether oral or documentary.
7. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Central Bureau of Investigation and others (2011) 9 Supreme Court Cases 182 while interpreting the provisions of Section 482 Cr. P.C. that the provisions of Cr. P.C. does not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of the Court or to prevent the abuse ::: Downloaded on - 15/04/2017 20:48:17 :::HCHP 7 of any process of the Court or otherwise to secure the ends of justice. It has been further held that the language of sub-section (8) of Section 173 Cr. P.C., therefore, cannot limit or affect the inherent powers of the High .
Court to pass an order under Section 482 Cr. P.C. for fresh investigation or reinvestigation if the Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice.
8. Reverting to the facts of the present case, the case of the of complainant is that after the prosecutrix, i.e. his minor daughter was allegedly raped by the accused, she intimated this fact to other persons, namely Vimal Tiwari, Bhardwaj Sir, Mamta Madam, Parkash Mehra and rt Vishnu, who asked her not to disclose the occurrence of the incident to any other person otherwise she will not be paid her wages and she will also be killed. This fact is also recorded by the prosecutrix in her statement which has been recorded under Section 164 Cr. P.C. by learned Judicial Magistrate 1st Class on 30.06.2015, in which she has stated that on the fateful day after she re-gained her consciousness, her Salwar was stained with blood. After washing her Salwar, she went to Vimal Tiwari and other officers, namely Mamta, Vishnu, Parkash Mehra and Bhardwaj, who scared her and stated that do not disclose this fact to her mother otherwise neither she will be married and her mother will also be killed and the name of the Company will also be spoiled. These facts also find mention in her statement recorded under Section 161 Cr. P.C.
9. It has been averred in the present petition that after the alleged incident, an effort was made to hush up the matter. The ::: Downloaded on - 15/04/2017 20:48:17 :::HCHP 8 complainant has alleged that the SHO concerned, i.e. respondent No. 5 refused to take the Salwar of the prosecutrix in possession. The petitioner has also alleged that he was approached by the workers of the Company .
against whom he wants action to be taken with the help of SHO, Kala Amb and with the help of one mediator Mr. Sada, R/o Chhachhrauli by involving one retired police official and some politicians of Yamunagar and the petitioner was called at PWD Rest House, Chhachhrauli in July, of 2015, in which meeting one Mr. Saukin, ITI Yamunagar was also present, where he was pressurized to close the matter and he was also offered money in lieu of the same.
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10. The concerned Station House Officer has been arrayed in his own capacity as respondent in the present Criminal Writ Petition, however, he has not filed any independent reply to the petition. There is only one joint reply which has been filed by the respondents to the Criminal Writ Petition and incidentally, this reply is not sworn on the affidavit of respondent No. 5, i.e. SHO, Kala Amb, but the reply is sworn on the affidavit of Superintendent of Police, Sirmaur District at Nahan, H.P. Further, a perusal of para-3 of the reply filed to the Criminal Writ Petition reveals that the same is vague and evasive as far as the allegations of influence etc. levelled in the said paragraph of the Criminal Writ Petition are concerned. Be that at it may, the fact of the matter is that the Criminal Case is sub judice and the trial is going on. In these circumstances, we do not deem it proper to make any ::: Downloaded on - 15/04/2017 20:48:17 :::HCHP 9 comment/observation on the merit of the case as the same can prejudice the case of the accused or the prosecution.
11. However, we are of the considered view that in view of the .
allegations which have been levelled by the complainant and the prosecutrix against Vimal Tiwari, Bhardwaj Sir, Mamta Madam, Parkash Mehra and Vishnu, the interest of justice will be served in case the Deputy Superintendent of Police, Kala Amb is directed to further of investigate the matter with regard to the allegations made against these persons in a free and fair manner. Accordingly, he is directed to carry out further investigation in the matter and the investigation be carried out rt and completed within a period of two months from today and the respondents shall thereafter proceed in the matter on the basis of the out come of the said investigation in accordance with law. We may again observe that this order has been passed keeping in view the peculiar facts and circumstances of the case as the allegation is with regard to sexual molestation of a minor girl and to hush up the entire matter by the main accused in connivance with other persons who have not been made accused but whose names have been kept in Column No. 12 of the FIR.
We further direct that while carrying out investigation, the concerned Officer shall not be influenced by the findings returned by learned Special Judge, Sirmaur District at Nahan, H.P. in its order dated 09.03.2016 vide which, he dismissed the application filed under Sections 173, 204 and 319 Cr. P.C. We also make it clear that during the course of investigation, the Officer concerned shall not be influenced by any observations made ::: Downloaded on - 15/04/2017 20:48:17 :::HCHP 10 by us in the present case and the investigation shall be carried out in a free and fair manner to find out the truth.
12. It has been argued on behalf of the State that direction is .
being sought against persons who are not even party before this Court and before passing any orders said persons should be impleaded as party respondents. We are of the considered view that though it would have been prudent that all these persons had been impleaded as party of respondents in this case, but in view of the order which we have passed, it is not necessary to implead them as party respondents in the case.
13. With the aforesaid directions, the petition is disposed of.
rt (Rajiv Sharma) Judge (Ajay Mohan Goel) Judge July 13, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:48:17 :::HCHP