Punjab-Haryana High Court
Date Of Decision:-16.5.2 vs State Of Haryana And Others on 16 May, 2011
Author: Ritu Bahri
Bench: Ritu Bahri
Criminal Misc. No. M- 24518 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Criminal Misc. No. M- 24518 of 2007
Date of decision:-16.5.2011
Indu Duggal
...Petitioner
Versus
State of Haryana and others
...Respondents
2. Criminal Misc. No. M- 22838 of 2008 Ranbir Singh and another ...Petitioners Versus Director General of Police, Haryana and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Manjeet Singh, Advocate for the petitioner (in CRM No. M-24518 of 2007).
Mr. Raminder Singh Chauhan, Advocate for the petitioners (in CRM No. M-22838 of 2008).
Mr. Kshitij Sharma, AAG Haryana.
Mr. Sukhdeep S. Sandhu, Advocate for the CBI.
RITU BAHRI J.
This order shall dispose of both the criminal miscellaneous petitions as the same are connected matters. The facts are taken up from Criminal Miscellaneous No. M-24518 of 2007.
The present petition under Section 482 Cr.P.C. has been filed by the petitioner (wife) for issuing directions to the respondents to entrust the Criminal Misc. No. M- 24518 of 2007 -2- investigation of the case FIR No.85 dated 28.6.2006 under Section 365 IPC read with Section 34 IPC, registered at Police Station Naggal Chaudhary, District Mahendergarh (Annexure P-1) to the Central Bureau of Investigation so as to recover the husband of the petitioner, who is stated to be kidnapped by respondent No.8 on 26.6.2006. It is alleged in the petition that respondent No.8 is a Head Constable and a fair investigation in the case was not conducted.
Brief facts of the case are that the husband of the petitioner was working as Peon/Head messenger with State Bank of India, Bhungarka Branch, District Mahendergarh. The petitioner is having two sons, the elder son namely Ashwani Kumar @ Ashu, is working in a Call Center at Delhi. The petitioner is residing at Bhiwani. On 17.5.2006, respondent No.8 alongwith his wife and brother came to the house of petitioner and stated that her son has taken away his daughter. From this date there was always continuous tension between two families because of the alleged relationship of Ashwani Kumar and daughter of respondent No.8-Ranbir Singh. It is alleged in the petition that on 26.6.2006 respondent No.8 alongwith unknown persons abducted the husband of the petitioner from the bank and FIR No.85 dated 28.6.2006 under Section 365 IPC read with Section 34 IPC, was registered at Police Station Naggal Chaudhary, District Mahendergarh. The petitioner approached the police to conduct fair investigation and trace her husband. When respondent No.8 came to know about registration of FIR against him, he got an FIR, bearing No. 320 dated 07.7.2006 under Sections 366,363,120-B and 506 IPC registered at Police Station City, Bhiwani against the petitioner and her husband and other family members stating that the son of the petitioner had abducted his daughter in connivance with other family members. In the above background, both the families have been involved in litigation.
The first status report and investigation report was filed on 21.8.2007 by Rajender Singh, HPS, Deputy Superintendent of Police, State Crime Criminal Misc. No. M- 24518 of 2007 -3- Branch, Gurgaon. As per this report, respondent No.8-Ranbir Singh was interrogated on 09.3.2007 and on 02.7.2007. He tried to commit suicide in the presence of police officials on 04.8.2007, where he was present alongwith Angrej Kaur. An FIR No. 214 dated 04.8.2007 under Sections 353,186,309 and 506 IPC read with Section 34 was registered at Police Station Civil Lines Gurgaon against respondent No.8 and Angrej Kaur. As far as tracing of petitioner's husband Naresh Kumar Duggal is concerned, vide this status report, he could not be traced. In compliance of order dated 28.8.2008 reply dated 09.09.2008 on behalf of Rajender Kumar, IPS, Superintendent of Police, State Crime Branch, Haryana, Madhuban was filed. On 03.9.2008, respondent No.8-Ranbir Singh appeared before the Illaqa Magistrate and recorded his statement stating that he could not give his consent for lie detector test as he was under treatment from PGIMS, Rohtak. In view of his above situation, lie detector test could not be conducted on him. On 28.9.2009 another status report of Ramkishan, HPS, Deputy Superintendent of Police, State Crime Branch, Faridabad was filed. In this status report, notices have been sent under Section 160 Cr.P.C. to the suspects for Polygraph Test but Ranbir Singh and Angrej Kaur had refused to appear before the Court. On 04.11.2008 search raids were conducted at Narnaul and Goneda (Rajasthan) etc. for tracing the abducted Naresh Kumar Duggal but nothing material was found. On 15.11.2008 from the details of unidentified dead bodies, found in the areas of adjoining police stations of Police Station Naggal Chaudhary and police stations of the States of Haryana, Delhi and Rajasthan, regarding this incident were collected and matched with the photograph of abducted Naresh Kumar Duggal but his features did not match with them. Despite best efforts, the Polygraphy Test could not be conducted on Ranbir Singh. A reward of Rs.50,000/- (rupees fifty thousand only) was got declared for anyone giving any information leading to a breakthrough in this case. A final status report dated 19.1.2011 has been filed by Ashok Kumar, HPS, Deputy Criminal Misc. No. M- 24518 of 2007 -4- Superintendent of Police, State Crime Branch Madhuban. As per this report, despite the investigation being carried out on day to day basis and despite raids being conducted at Narnaul and Goneda (Rajasthan) etc. for searching abducted Naresh Kumar Duggal but nothing material was found. During investigation Ranbir Singh's mobile was found in Village Nehchana, District Rewari NH-8 at the time of offence, so, Ranbir Singh is a suspect in this case. During investigation persons named Rajbir, Devdutt, Servsukh, Tarun, Umakant and Narender etc. were examined, who contacted Ranbir Singh on 26.6.2006 but no clue was found. A reward of Rs.1,00,000/- (rupees one lac only) was got declared for anyone giving any information leading to a breakthrough in this case and the same was advertised through National Daily and pamphlets in the areas surrounding the place of incident and neighboring States. The same was also broadcast on Doordarshan and All India Radio, Delhi and Rohtak. The mobile phone interception of suspect Head Constable Ranbir Singh was put on survelliance for over two months for getting any information about the abducted Naresh Kumar Duggal but no information was collected. As per the inquest report unidentified dead bodies did not match with the photograph of abducted Naresh Kumar Duggal as reported by Sumer Singh, Deputy Superintendent of Police. In FIR No. 320 dated 07.7.2006 under Sections 363,366,506 and 120-B IPC, registered at Police Station City Bhiwani, challan has been presented against accused Ashwani @ Ashu son of Naresh Duggal on 12.6.2008 and investigation was being carried out by the Deputy Superintendent of Police, CID Crime vide orders of the Director General of Police, CID, Haryana dated 21.8.2009.
I have heard learned counsel for the parties and have gone through the case file carefully.
Mr. Manjeet Singh, Advocate counsel for the petitioner has argued that despite the incident took place in the year 2008, the police has not been able to make a breakthrough in the case. Even Polygraphy Test on Ranbir Singh Criminal Misc. No. M- 24518 of 2007 -5- Head Constable has not been conducted by the investigating agency. The matter should be transferred to CBI and petitioner's husband Naresh Duggal be got traced.
Mr. Kshitij Sharma, AAG Haryana has argued that ever since the FIR No.85 dated 28.6.2006 under Section 365 IPC read with Section 34 IPC was registered, sincere efforts to trace out the husband of petitioner were made by the police. Respondent No.8 was thoroughly interrogated by the respondents. The information with regard to abduction of petitioner from the State Bank of India, Bhungarka Branch by three persons was submitted to the police by the Branch Manager of the bank. At that time, respondent No.8 was not named by the said Branch Manager. During investigation, the police verified the details of mobile phone of respondent no.8, given by the petitioner. Thereafter, respondent No.8 was joined in investigation but he did not give any satisfactory reply. He has further argued that an FIR was got registered by respondent No.8 under Sections 366/363/120-B and 506 IPC at Police Station City, Bhiwani on 07.7.2006 against the petitioner, her husband and her sons. The investigation is going on against the petitioner in that case. In compliance of order dated 28.8.2008 efforts were made to get lie detector test of Ranvir Singh, Head Constable-respondent No.8. But he did not give his consent. On 25.10.2008 photographs of the main suspect i.e. Head Constable Ranvir Singh were shown to the officers/officials of the State Bank of India and eye witness of the incident namely Neeraj son of Satyavir. They all denied and said that it was very difficult to tell by seeing the photographs that the said Ranvir Singh was involved in kidnapping. An effort was made to get polygraphy test of Smt.Angrej Kaur wife of Prem Chand and Smt. Premlata wife of Ashwani Kumar but they did not appear before the Court. Search raids were conducted in Narnaul and Goneda (Rajasthan) but no address of Naresh Kumar Duggal was found. Subsequently, rewards were also announced by the police. Mr. Kshitij Sharma, AAG Haryana Criminal Misc. No. M- 24518 of 2007 -6- assures that as pr the status reports dated 21.8.2007, 28.9.2008 and 19.1.2011 sincere efforts have been made by the police to trace the abducted Naresh Kumar Duggal but no material was found. The respondent Head Constable Ranvir Singh had refused to get polygraphy test and this test cannot be conducted without his consent. The dispute is the result of inter caste marriage between the children of both the families.
After going through the entire facts, this Court is of the view that sincere efforts have been made by the investigating agency to trace the abducted Naresh Kumar Duggal, even though polygraphy test has not to be conducted on Ranvir Singh. The Supreme Court in case Smt. Selvi and others versus State of Karnataka and others 2010(2) RCR (Criminal) 896 has held that these types of test cannot be conducted without consent of the concerned person. The Supreme Court has examined the issue whether any voluntarily administration of scientific techniques namely Narcoanalysis, Polygraph (lie detector) test and Brain Electrical Activation Profile (BEAP) test violates the right against 'self-incrimination' enumerated in Article 20(3) of the Constitution. Whether it causes reasonable restriction on the personal liberty as understood in the context of Article 21 of the Constitution. Protection is available under Article 20(3)of the Constitution not only to persons who have formally accused but also to suspects. It also extend to cover the witnesses, who apprehend that their answers exposed them to criminal charges in the ongoing investigation and even in the cases other than the one being investigated. The Supreme Court in paragraph 109 of the judgment has referred to the observation made by Justice Krishna Iyer in (1978) 2 SCC 424 at page 435:-
"The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge.Criminal Misc. No. M- 24518 of 2007 -7-
Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression 'expose himself to a criminal charge'. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges."
It was further observed, Id. at pp.451-452 (para.50) :
"...'To be a witness against oneself' is not confined to the particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from 'tendency to be exposed to a criminal charge'. A 'criminal charge' covers any criminal charge then under investigation or trial or which imminently threatens the accused."
The following parameters have been laid down by the Supreme Court for voluntary administration of the impugned techniques (tests) :-
"(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.]
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement Criminal Misc. No. M- 24518 of 2007 -8- made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record."
In the facts of the present case Ranvir Singh did not give any consent to the Polygraphy Test, which was sought to be conducted upon him. The dispute in the present case relates to the inter-caste marriage between the families of the accused and the complainant and despite the detailed investigation conducted no infirmity has been pointed out by counsel for the petitioner in the investigation so that it can be referred for further investigation to CBI.
In view of the above, the matter does not require to be transferred to CBI.
The criminal miscellaneous petition is dismissed.
16.5.2011 ( RITU BAHRI ) Vijay Asija JUDGE