Madhya Pradesh High Court
Banti @ Vivek vs The State Of Madhya Pradesh Thr on 1 October, 2018
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.30837/2018
(Banti @ Vivek vs. State of M.P.)
Gwalior, Dated : 01.10.2018
Shri J.P. Mishra, Counsel for the applicant.
Shri Pramod Pachauri, Public Prosecutor for the
respondent/State.
This is second application filed under Section 439 of Cr.P.C.for grant of bail. The first application was dismissed as withdrawn by order dated 24.5.2018 passed in M.Cr.C.No.15214/2018 with liberty to revive after the report from the FSL, Sagar is received.
The applicant has been arrested on 8.3.2018 in connection with Crime No.12/2018 registered by Police Station Aswar, District Bhind for offence punishable under Sections 307, 394, 397 of IPC and under Section 11/13 of MPDVPK Act.
The first application was dismissed with liberty to revive after receipt of the FSL report. However this bail application was filed alleging that in spite of the fact that sufficient time has elapsed but the FSL report has not been produced. Accordingly, by order dated 6.9.2018, the State Counsel was directed to obtain the FSL report. On 24.9.2018, one FSL report was produced which was in respect of the clothes of the victim. This Court found that apart from the clothes of the victim, the gun which was seized from the possession of the applicant as well as one live cartridge of 315 bore and the bullet recovered from the body of the injured Tulsiram were also sent to FSL, Sagar, but no report has been filed in respect of 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.30837/2018 those articles, therefore, the counsel for the State was directed to obtain the detailed reply as to why the FSL, Sagar has not sent the report concerning the bullet recovered from the body of the victim. Here it is not out of place to mention here that the FSL, Sagar concerning the bullet recovered from the body of the victim as well as the pistol seized from the possession of the applicant is of utmost importance because initially the applicant himself lodged a report alleging that the persons mentioned in the FIR came to his house and after opening the door of the house, one Ramvir Yadav fired a gunshot causing injury on the ankle of his father and they also took away three gold rings and Rs.20,000/-. However, during investigation, the police found that in fact it was the applicant himself who had caused injury to his father with an intention to falsely implicate the persons mentioned in the FIR. Three gold rings were also recovered from the possession of the applicant, one country made pistol as well as one live cartridge was also recovered from the possession of the applicant. It was also argued by the counsel for the applicant that in fact the applicant who is the son of the victim has been falsely implicated at the behest of the persons who had committed the offence. The police had saved the real culprits and had made the applicant as an accused who is the son of the victim.
Considering the fact that the bullet recovered from the body of the victim as well as the country made pistol 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.30837/2018 seized from the possession of the applicant has been sent to FSL, Sagar, therefore, the applicant was granted liberty to repeat the application after receipt of the said report. When this Court found that the police has not collected the report pertaining to the bullet recovered from the body of the injured Tulsiram and the country made pistol recovered from the possession of the applicant, therefore, by order dated 24.9.2018, the reply was sought.
The State Government has filed the reply. Along with the reply, the State has also placed the copy of the report of Ballistic Branch, FSL, Sagar. According to which the bullet recovered from the possession of the victim namely Tulsiram, who is the father of the applicant, was fired from the country made pistol which was seized from the possession of the applicant. Thus, prima facie it is clear that it was the applicant himself who had caused injury on the ankle of his father so that he may falsely implicate the persons named in the FIR. Since this FSL report was just contrary to the defence taken by the applicant and was sufficient to demolish the defence of the applicant, therefore, it appears that the applicant was trying to suppress this report so that his real misdeed may not come to light. In the reply which has been filed by the State in compliance of order dated 24.9.2018, it is mentioned that the FSL, Sagar had issued the report in two parts. The report pertaining to the clothes of the injured Tulsiram was received on 4 THE HIGH COURT OF MADHYA PRADESH MCRC No.30837/2018 16.5.2018 and the report pertaining to the bullet recovered from the body of injured Tulsiram as well as the country made pistol seized from the possession of the applicant was received on 21.5.2018 and accordingly the original report was handed over to Constable No.40 Devendra Rathore on 21.5.2018 itself so that it can be produced before the Trial Court. It is also mentioned that the said Constable No.40 Devendra Rathore kept the report with himself and did not produce it before the Trial Court and only after receiving the letter from the Office of the Additional Advocate General, when the SHO of the concerning police station checked the record, then it was found that as per the serial No.850 of the outward register of the police station, the said report was handed over to Constable No.40 Devendra Rathore. It was also found by the SHO of the concerning police station that in spite of the fact that the said FSL report was handed over to Constable No.40 Devendra Rathore but till today neither he has annexed the said report in the case diary nor he has produced the same before the Court which is the indicative of his gross misconduct. When the reply of Constable No.40 Devendra Rathore was obtained, then he has stated that by mistake he kept the report in other documents, and he forgot therefore, the same could not be filed before the Trial Court.
It is also mentioned in reply that considering the reply given by Constable No.40 Devendra Rathore, the matter has been referred to the Superintendent of Police 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.30837/2018 for initiating departmental enquiry which is Ex.P/2 and the report given by Ballistic Branch, FSL, Sagar dated 24.7.2018 has also been annexed along with the present reply.
In view of the ballistic expert report, it is clear that it was the applicant who himself had fired the gunshot and with an intention to falsely implicate the person named in the FIR. The false FIR was lodged by the applicant and the gold rings, which were allegedly looted by the person mentioned in the FIR, were also recovered from the possession of the applicant and a possible attempt has been made by the applicant to somehow keep the FSL report away from the Trial Court, thus, this Court is of the view that it is not a fit case for grant of bail. Accordingly, the application is rejected.
However, this Court cannot keep its eye close with regard to the act of Constable No.40 Devendra Rathore. As already pointed out that the report of Ballistic Branch of FSL, Sagar is of utmost importance and this report completely demolishes the stand of the applicant and, therefore, if this report is not placed on record before the Trial Court, then it would be the applicant who would be the beneficiary. Constable No.40 Devendra Rathore has also admitted that he had received the said report from the police station on 21.5.2018 which is fully corroborated by the outward register of the police station and even after expiry of more than four months, the said report was deliberately not filed before the Trial Court.
6THE HIGH COURT OF MADHYA PRADESH MCRC No.30837/2018 Even this Court has requisitioned the FSL report but it was suppressed by the police authorities and it was not filed before this Court also and only when this Court took a serious note of the lapses on the part of the police authorities, then the police authorities have come to a conclusion that it is the Constable No.40 Devendra Rathore who has not filed the said report before the Trial Court in spite of expiry of four months.
Be that as it may.
The SHO has already come to a conclusion that this conduct of Constable No.40 Devendra Rathore is a gross misconduct. This Court is also of the view that in view of the importance of the document which was suppressed from the Trial Court, it is a direct interference with the justice dispensation system. An attempt has been made by Constable No.40 Devendra Rathore to save the applicant and thus this Court is of the view that not only it is a case of gross misconduct as already opined by the SHO of the concerning police station but it is a clear attempt to interfere with the justice dispensation system and an attempt has been made to save the accused. Under these circumstances, once the matter has already been referred to the Superintendent of Police, Bhind for initiating the departmental action against Constable No.40 Devendra Rathore, it is directed that the Superintendent of Police, Bhind shall immediately place Constable No.40 Devendra Rathore under suspension and would immediately initiate the departmental 7 THE HIGH COURT OF MADHYA PRADESH MCRC No.30837/2018 proceedings against Constable No.40 Devendra Rathore. The Superintendent of Police, Bhind may also initiate the departmental action against any other police personnel if he is of the view that the said person is also responsible for negligence.
It is made clear that the suspension of Constable No.40 Devendra Rathore shall not be revoked without seeking further orders from the Trial Court. The Superintendent of Police, Bhind is also directed to ensure that the charge sheet is issued as early as possible to all the persons who may be responsible for suppressing this important report from the Trial Court. The Superintendent of Police, Bhind is also directed to keep the Trial Court informed about the progress of the departmental enquiry.
Let a typed copy of this order be immediately sent to Superintendent of Police, Bhind through the Public Prosecutor.
A copy of this order be also sent to the Trial Court for necessary information and compliance.
(G.S. Ahluwalia)
(alok) Judge
Digitally signed by ALOK KUMAR
Date: 2018.10.04 10:38:38 +05'30'