Rajasthan High Court - Jodhpur
Shri Pema vs State on 7 July, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1647 / 2017
Shri Pema S/o Baksha @ Hazari, Aged About 39 Years, By Cast
Banbagariya, R/o Khana Badosh, Presently Dera Silariya, Khatu
Badi, District Nagaur (Rajasthan).
----Petitioner
Versus
The State of Rajasthan Through Public Prosecutor.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Vineet Jain.
For Respondent(s) : Mr. MS Panwar PP for the State.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 07/07/2017 The petitioner has preferred this misc. petition on the ground that an incident happened on 21.04.2017, in which brother of the present petitioner namely Pusaram son of Baksha @ Hazari, aged about 40 years lost his life as a consequence of the bullet being fired from the pistol of a police constable, which was nothing but a murder in cold blood. When the act was committed, as many as eight police personnel were present on the spot and apprehending action against themselves, another FIR was lodged by the police personnel themselves bearing FIR No.21/2017 on 22.04.2017 for the alleged offences under Sections 332, 353 and 307 IPC, in which family members of the deceased were arrayed as accused.
The contention of the petitioner is that the postmortem report suggests that shooting was not due to grappling and in fact the well intended act on the part of the police. The story of the investigating authority is that when the police personnel went to the concerned location, at that time, one of the constables was (2 of 5) [CRLMP-1647/2017] surrounded by the local persons, who inflicted lathi blows on him. When the police personnel went to the location with certain more police personnel, the local persons surrounded them and while they were intoxicated and they were not prepared to understand that the police was not there for any kind of action, but only there to maintain law and order. The mob which was armed with lathis and started shouting on the police persons and threatened the police official of setting them on fire and also gestured as if to kill the police persons. The police personnel realized that it was an intense situation and in between the mob it was not possible for them to stay there and therefore they tried to go back from the concerned locality, upon which one of the persons from the locality came out with the topidar gun and wanted to shoot the police personnel. The police jeep meanwhile got stuck in the sand and since the police could not retreat, the mob attacked Constable Ram Kishore and tried to hit him on his head. Although he managed to save himself, but he suffered some injuries. Constable Bhinya Ram also suffered injuries and while the mob was trying to snatch the weapons and was trying to assault the police personnel, one of the constable, Ram Kishore fired in air, whereupon, the mob attacked him and tried to snatch weapon S.L.R., which was loaded and in the scuffle, the trigger went off and one person died. The police personnel who stood there continuously tried to escape but one more police personnel was attacked by mob and therefore, they continued to fire in the air and somehow kept trying to escape from the site. The mob went after the police personnel and snatched away some weapons from (3 of 5) [CRLMP-1647/2017] them and also tried to kill the police persons. Then the information was given to the senior officers regarding the incident at that moment. The concerned C.O. came to the site and took Head Constable Baldev Ram, Constable Ram Kishore and Constable Bhinya Ram for treatment to the hospital. The injured person amongst the injured local was also taken to the hospital, where Pusaram Banbagaria was declared dead. The cases were lodged by both the parties and investigation is going on. The three Topidar guns were recovered from the site from the mob, along with 303 live cartridges, lathis along with gun powder and certain bullets with blasting material. The investigation after such recovery is continuously going on and the statements of Baldev Ram, Ram Kishore, Narendra Singh, Mangla Ram, Ms.Baju Devi, Bhiya Ram, Sukhdev, Devendra Pal, Shyam Singh, Mahendra Singh, Daljit Singh, Babu Singh, Chela Ram have been taken under Section 161 of Cr.P.C.
It is also informed by the Pubic Prosecutor that both the cases registered under the FIRs No.21/17 and 22/17 at Police Station Khatu Badi, District Nagaur have been handed over to a Senior Police Officer i.e. Additional S.P. and detailed investigation is going on.
On a bare reading of the facts of the case, it is clear that the mob had attacked the police party with the weapons and lathis.
Counsel for the petitioner however, states that all the above versions stated by the prosecution are wrong as use of the guns by police could have been made in case the mob actually was armed and also the investigation ought to be more fair and (4 of 5) [CRLMP-1647/2017] impartial and his apprehension is that since the investigating authority belonging to the same Department, the submission of the learned Public Prosecutor in respect of the on going investigation being fair and impartial may not be totally correct.
Learned Public Prosecutor assures this Court that though the police personnel are investigating but however they are trained professionals to deal with the investigation and to conduct free and fair investigation.
The counsel for the petitioner also cited the judgment rendered in H.K. Sema and Dr. AR. Lakhsmanan, JJ reported in (2006) 1 SCC (Cri) page-678, relevant portion of which reads as under:-
"7. In this case, admittedly, the complaint was filed against the police officer. Learned counsel for the parties are not at variance that in such a situation the interest of justice would be better served if this Court directs CBI to register the case and investigate the matter.
8. Mr. Vikas Singh, learned Additional Solicitor General although vehemently opposed registration of the case but he fairly concedes that if at all the case be registered and investigation is to be carried out, CBI would be and appropriate authority to register a case and investigate. We are also of the view that since there is allegation against the police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like CBI."
Learned Public Prosecutor submits that the precedent law cited above by the petitioner is not applicable in the present case (5 of 5) [CRLMP-1647/2017] because the police in that case was not registering the case and the investigation was not being conducted by the police personnel and therefore, apparently the facts of the aforecited case are quite different from the present case and thus cannot be made applicable in the present case.
After hearing the counsel for the parties and looking at the precedent law as well as the status report furnished by the learned Public Prosecutor, this Court is convinced that there is nothing on record to show that the investigation is not being made fairly and impartially, and in the given circumstances, the investigation needs to be completed, and since the investigation is being made by a Senior Police Officer, some confidence has to be there in favour of the police force, until the conclusion, wherein if something glaring comes out, which shall suggest from the record that that direction of the investigation was not proper. Further the learned Public Prosecutor assures this Court that a free, fair and impartial investigation shall be conducted by taking every record into consideration and the senior officer of the police shall personally ensure that no prejudice is caused to the petitioner only on account of the fact that one of the parties is police personnel. There is no reason to disbelieve assurance given by the learned Public Prosecutor, and hence nothing survives in the present petition.
Consequently, the present petition is dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. ck