Jammu & Kashmir High Court
Nek Ram vs State And Ors. on 21 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.275/2015, IA No. 01/2015
Date of order: 21.12.2018
Nek Ram Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. F. S. Butt, Advocate
For respondent (s) : Mr. Arshad Malik, Dy.AG
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 561-A Cr.P.C. read with Section 439 of the Code of Criminal Procedure, petitioner seeks quashing of order dated 23.05.2015, passed by learned Court of Additional Sessions Judge, Doda.
2. The case of the petitioner is that a case FIR No.43/2008 was registered by Police Station, Doda against him for offences under Sections 420/466/467/468/471 RPC which culminated into presentation of Charge Sheet bearing No.106/09 dated 29.06.2009 before the Court of Additional Sessions Judge, Doda and has been registered as File No.23/Sessions.
3. It is stated that the allegation against the accused, who was then Constable No. 234/D (now H.C No. 4/D), and posted at Police Station, Doda, is that he has prepared a Character verification certificate in favour of one Liyaqat Ali S/o Ghulam Hussain and has forged the signature of the then SHO Doda Sh. Inder Singh Jasrotia, due to which, said Liyaqat Ali who was involved in a Criminal case though acquitted, was CRMC No.275/2015 Page 1 of 8 appointed as Constable in IRP IVth Battalion. The alleged Character Verification certificate was in the handwriting of petitioner which has been confirmed by FSLreport, but the seal and signature of the attesting/issuing authority i.e., SHO Doda has not been sent to FSL to determine who has signed on the certificate. It is stated that the matter was argued for the purpose of Charge/Discharge and the Counsel for accused/petitioner vehemently argued that if there is an allegation of the accused forging the signature of issuing authority i.e. the then SHO, then why the said signature has not been sent to handwriting expert to prove and establish that the accused/petitioner had actually forged the document. The issuing officer can be absolved from his responsibility only if the signatures are proved to be forged. It is further stated that in this particular case, the investigating agency has deliberately left out the signature of SHO from the FSL scan and has not sent his signature to expert for confirmation and this being so the offence of forgery or preparing of a fake document cannot be slapped against the petitioner and he cannot be charged of an offence which has not even been prima facie established by the investigation.
4. It is further contended that the learned Trial Court after hearing the arguments on charge/discharge and after applying its mind, passed an order dated 23.05.2015. Operative part of said order reads as follows:-
"Fact remains that the document in question got sanctity only when it was finally stamped and signed by the authority. Moreover when SHO under whose alleged stamp and signature the document in question stands issued has categorically denied his signature on the said document. Obviously in such an eventuality it was legally incumbent upon the I.O to take the specimen signatures of SHO and of Nek Ram and both should have been sent to FSL to determine who has signed on the CRMC No.275/2015 Page 2 of 8 certificate and then culpability should have been determined and fixed.
In view of this huge lacuna on the part of the investigation agency, this Court deems it proper to direct the prosecution to conduct further investigation in the matter and come to the conclusion as so who actually has forged the signature on the questioned document which has been issued to the aforenamed accused Liayat Ali, particularly in this backdrop when the counsel for the accused Nek Ram has alleged that the signature on the questioned document has been signed by the then SHO P/S Doda namely Inder Singh Jasrotia, Inspector. This part of the investigation is of paramount importance for reaching to the just conclusion.
Prosecution is therefore, directed to take the specimen signatures of the then SHO P/S Doda namely Inder Singh Jasrotia and send them to FSL, Jammu for examination and matching with the signature on the questioned document, alongwith the specimen signatures of the accused Nek Ram and after investigating the matter afresh, file the fresh supplementary report within a period of two months. The I.O of the case will be at liberty to take any of the document from the challan already filed in the said case."
5. The petitioner is aggrieved of the impugned order dated 23.05.2015 and challenges the same on the following grounds:-
1. That the order impugned dated 23.05.2015 is illegal and arbitrary. The Learned Trial Court while passing order impugned has exercised jurisdiction which is not vested to it under any of the provisions of Cr. P.C.
2. That when the Learned Trial Court came to the conclusion that the matter requires further investigation then it was incumbent upon the learned Trial Court to return the charge sheet to the prosecution for conducting fresh investigation with liberty to present Charge sheet again after re-investigation, rather than to retain the file in the Court with direction to file fresh supplementary report. It is sublimed herein that there is no provision in Cr.P.C to file fresh Supplementary Report on the direction of Court.CRMC No.275/2015 Page 3 of 8
3. That the investigating agency has power to conduct further investigation under Section 173(8) of the Cr.P.C even after charge sheet is presented before the Court of Law and can file supplementary Charge sheet provided so fresh or new material is collected. The investigating agency has power to conduct further investigation on its own if it comes across some more material and evidence of which Court of competent jurisdiction informed. Thus there is no provision to file fresh supplementary report on the direction of the Court.
4. That after hearing the arguments on charge/discharge the Hon'ble Court was supposed to either discharge the petitioner from the alleged offence or should have remitted the charge sheet back to the prosecution for further investigation and to present it again after further investigation. The learned Trial Court has adopted a noval method which is unknown to provisions of Cr.P.C. Learned Trial Court has acted as a prosecution in the instant case in order to fill the lacuna of investigating agency.
5. That the order impugned amounts to abuse of process of law and the Hon'ble Court can exercise its inherent power vested under Section 561-A Cr.P.C. to make such orders as are necessary to give effect to any order under the code or to prevent the abuse of process of law by Learned Trial Court or otherwise to secure ends of justice.
6. In support of his contention, learned counsel for the petitioner relies upon the decisions of the Hon'ble Supreme Court reported in AIR 1997 SC 639 titled 'Randhir Singh Rana vs. The State Being the Delhi Administration'; and Cr. Appeal No. 1171 of 2016 (arising out of SLP(criminal) No.3338 of 2015, titled Amrutbhai Shambhubhai Patel vs .Sumanbhai Kantibahi Patel and ors, decided on 2nd February 2017.
7. I have considered the rival contentions. I have also gone through the law on the subject.
8. Briefly the allegation against the accused/petitioner is that he was Constable No. 234/D (now H.C No. 4/D) and posted at Police Station, Doda; he prepared a Character verification certificate in favour of one Liyaqat Ali S/o Ghulam Hussain and after forging the signature of the then SHO Doda Inder Singh Jasrotia; on the basis of said forged character verification certificate, due to which, said Liyaqat Ali who was CRMC No.275/2015 Page 4 of 8 involved in a Criminal case though acquitted, was appointed as Constable in IRP IVth Battalion.
9. During investigation of the case, it was confirmed by FSL report that alleged Character Verification certificate was in the handwriting of petitioner/accused; but during investigation the seal and signature of the attesting/issuing authority i.e., SHO Doda was not sent to FSL to determine who has signed on the certificate. So court at the time of hearing argument on question of charge found this infirmity and directed police to take the specimen signatures of the then SHO P/S Doda namely Inder Singh Jasrotia and send them to FSL, Jammu for examination and matching with the signature on the questioned document, alongwith the specimen signatures of the accused Nek Ram; it was also directed that after investigating the matter afresh, police shall file the fresh supplementary report within a period of two months.
10. So crucial question to be decided is whether Court can direct police to do so. Section 173 Cr.P.C. reads as under:-
"173. Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay:
[2][Provided that investigation into offences under sections 152, 153- A, 295, 295-A, 296,297,298, 435, 436 and 505 of the State Ranbir Penal Code shall be completed within two weeks, and if the investigation is not so completed the investigating officer shall report the causes of the delay to the District Superintendent of Police who shall issue necessary instructions for completion of the investigation].
(2) (i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Government stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstance of the case;CRMC No.275/2015 Page 5 of 8
(d) whether any offence appears to have been committed and if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate direct the officer-
in-charge of the police station to make further investigation.
(4) Wherever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report.
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is in expedient in the public interest, he shall indicate that part of the statement and append a not requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(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, where upon such CRMC No.275/2015 Page 6 of 8 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 evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).]"
11. From bare reading of this provision of law, section 173(8) Cr.P.C.
mandates that the police can conduct further investigation even after charge sheet is presented before the court of law and can file supplementary charge sheet provided some fresh or new material is collected. The purpose of criminal law is to punish the offender; procedural laws are hand made tools meant for administration of justice and not to thwart the justice. Offender has to be punished for the offence he committed. Chapter XIV of Cr.P.C. deals with investigation. After registration of FIR in cognizable offence under section 154 of Cr.P.C., police conducts investigation under section 156 Cr.P.C. The process of investigation varies from crime to crime; but some process is common in every types of investigation; like visiting on spot; preparation of site plan; seizures of relevant articles with which offence has been committed or which are relevant as from these articles inference of commission of offence can be gathered; conducting of search for discovering the facts necessary to unravel the truth; recording statement of witnesses under section 161 or 164-A Cr.P.C. etc. Investigating officer should be fair to accused as well as to complainant; In forgery case, especially where accused has forged the signature of someone on forged document, the comparison of signature of accused and that of person whose signature has been forged by FSL,is most important aspect of investigation. This is important for accused as well as complainant to come to just conclusion of forgery aspect of the matter. Although opinion of expert is not substantial piece of evidence, but may be corroborating factor.CRMC No.275/2015 Page 7 of 8
12. In present case, trial has not been started as charges are yet to framed. It is duty of court to do justice by asking the police to conduct investigation as per law and procedure therein. The law cited by counsel for petitioner is not applicable, because in Randhir Singh Rana's case (Supra), trial has already been started as cognizance was taken, but in present case trial has yet not been started. In Amrutbhai Shambhubhai Patel's case (supra) the facts are also quite distinguishable as trial was at fag end and complainant / informant filed an application for further investigation.
13. In view of above, this petition is dismissed. Stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu 21.12.2018 Bir CRMC No.275/2015 Page 8 of 8