Madhya Pradesh High Court
Sanyam Singh Gurjar vs The State Of M.P. on 14 October, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
WA-1006-2020
(SANYAM SINGH GURJAR Vs THE STATE OF M.P. AND OTHERS)
Gwalior, Dated : 14.10.2020
Shri J.P. Kushwah, learned counsel for appellant.
Shri Sankalp Sharma, learned Panel Lawyer for
respondents/State.
With consent of the parties, heard finally.
In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been taken up for hearing through video conferencing to maintain social distancing.
This intra court appeal under section 2(1) of the M.P. Uchacha Nyayalya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, assails the final order dated 13.07.2020 passed in W.P. No.9569/2020, whereby the petition filed for reopening the investigation and holding the de novo investigation into the matter by an independent agency has been dismissed by the learned single judge.
It is alleged that fair and impartial investigation is a fundamental right as granted by the Constitution of India, for which the matter should have been reconsidered by the Courts. It is submitted that in a case of murder and an FIR was got registered on 12.03.20004 at Crime No. 89/2004. The matter was investigated and after completion of the same, the expunge report has been filed under Section 169 of Cr.P.C. The same was accepted by the learned trial Court vide order dated 2 HIGH COURT OF MADHYA PRADESH WA-1006-2020 (SANYAM SINGH GURJAR Vs THE STATE OF M.P. AND OTHERS) 28.2.2005. The order of acceptance of expungtion report was put to challenge by the petitioner by way of filing a revision before the VI Additional Sessions Judge (Fast Track Court), District Bhind being Criminal Revision No. 64/2005. The revision was allowed and the matter was remanded back to the concerning Magistrate. The order passed by the Revisional Court was put to challenge by one of the co- accused Jai Singh by filing Criminal Revision No. 165/2006 before this Court and the revision was allowed vide order dated 15.11.2006 and the order passed by the VI Additional Session Judge, (Fast Track Court) District Bhind was set aside, however, the matter was remanded back to the Court of Magistrate to decide the expunge report after giving an opportunity of hearing to the complainant as well as to the accused persons. Thereafter, the matter was kept pending before the trial Court. Owing to some delay, a writ petition was preferred by the petitioner which was disposed of by this Court vide order dated 26.08.2009 and the learned Judicial Magistrate First Class was directed to comply with the order dated 15.11.2006 passed by this Court in Criminal Revision No. 165/2006. Immediately the matter was taken up by the concerning Magistrate and thereafter the expunge report was accepted by the Court after granting of opportunity of hearing to the rival parties. The petitioner again challenged the order by filing a criminal revision no. 11/2010 which was decided vide order dated 10.05.2010 and the order accepting the expungtion report dated 11.01.2010 was affirmed. A 3 HIGH COURT OF MADHYA PRADESH WA-1006-2020 (SANYAM SINGH GURJAR Vs THE STATE OF M.P. AND OTHERS) petition under Section 482 of Cr.P.C has been preferred before this Court being M.Cr.C No. 5674/2010 and was finally decided vide order dated 27.02.2020 and the order passed by the learned J.M.F.C, Mehgoan District Bhind was affirmed. It is argued that the Courts have not taken into consideration the evidence available on record and the ground raised by the petitioner before the Court's below, therefore, a writ petition has been preferred before this Court seeking relief of de novo the investigation into the matter by any independent agency like C.B.I. It is submitted that there is ample evidences available on record. It is argued that the learned single judge has not considered the grounds raised by the petitioner in the petition and vide impugned order has dismissed the writ petition holding that the expungtion report was submitted in the year 2004 and the same has been upheld upto this Hon'ble Court and now after lapse of period of 16 years the entire investigation cannot be reopened.
Counsel for the petitioner submits that Article 21 of Constitution of India has provided ample powers to the Constitutional Courts to reopen the matter afresh and direct for fair and impartial investigation by an independent agency. He has relied upon the judgments passed by the Hon'ble Supreme Court in the cases of Dharmpal Vs. State of Haryana, reported in 2016 AIR SC 618, Rama Chaudhary Vs. State of Bihar, reported in 2009 (6) SCC 346 and Poojapal Vs. Union of India, reported in 2016 (1) SCC 743 and has argued that looking the 4 HIGH COURT OF MADHYA PRADESH WA-1006-2020 (SANYAM SINGH GURJAR Vs THE STATE OF M.P. AND OTHERS) evidence available on record the de novo the investigation should have been ordered by this Court.
On the other hand, learned Government Advocate submits that the learned Single Judge has duly considered the issue and recorded cogent findings, which do not call for any interference. The appeal being devoid of merit and substance is liable to be dismissed.
Heard the learned counsel for the petitioner and perused the records.
From the record it is seen that the FIR was got registered in the year of 2004 with respect to an offence committed under Section 302 of IPC. The police authorities after completion of investigation has filed expungtion report under Section 169 of Cr.P.C. The same was accepted by the learned Magistrate. The appellant has challenged the acceptance of expungtion report by filing a criminal revision before the Sessions Court which was registered as Cr.R. No. 64/2005 and the same was allowed and the matter was remanded back to the concerning Magistrate for reconsideration. The order passed in Criminal Revision was put to challenge by filing a criminal revision by accused Jai Singh and it was allowed vide order dated 15.11.2006, but the revisional Court has remanded the matter to the trial Court to decide the question of acceptance of expunge report afresh after providing opportunity of hearing to the rival parties. Thereafter, the matter was kept pending before the trial Court, which force, the appellant to file writ petition 5 HIGH COURT OF MADHYA PRADESH WA-1006-2020 (SANYAM SINGH GURJAR Vs THE STATE OF M.P. AND OTHERS) before this Court which was registered as W.P. No. 3210/2009, the same was heard and decided by this Court vide order dated 26.08.2009 directing the learned J.M.FC to comply with the order dated 15.11.2006. The learned J.M.F.C in pursuance to the order passed in W.P. No. 3210/2009 has taken up the matter and after providing opportunity of hearing to the rival parties has accepted the expungtion report. Again a Criminal Revision has been preferred which was registered as Cr.R No. 11/2010 which was decided by IV Additional Sessions Judge, Bhind vide order dated 10.05.2010 and the order dated 11.01.2010 passed by the JMFC, Mehgoan, District Bhind was affirmed. Again a petition under Section 482 of Cr.P.C. was preferred which was registered as M.Cr.C No. 5674/2010 and vide order dated 27.02.2020, the orders passed by the JMFC, Mehgoan District Bhind as well as the Revisional Court were affirmed. The learned single Judge has considered the entire matter and has observed that there is no provision for reopening of the investigation afresh and direction for de novo the enquiry after lapse of 16 years specially in the facts and circumstances when the petitioner/appellant has repeatedly challenged the expungtion report filed by the police authorities in various courts and was unsuccessful and after a long litigation the order accepting the expungtion report was finally affirmed upto this Court.
Counsel for the appellant could not point out any judgment or order passed by the Hon'ble Supreme Court to the effect that the matter 6 HIGH COURT OF MADHYA PRADESH WA-1006-2020 (SANYAM SINGH GURJAR Vs THE STATE OF M.P. AND OTHERS) can be reopened after the long lapse of 16 years and that to in the circumstances when the expungtion report submitted by the Magistrate was subjected to challenge in various litigations and have finally affirmed and have attained finality. The petitioner being a complainant in the case was having a remedy available under the law of approaching the concerning Magistrates at the relevant time if he was not satisfied with the investigation carried out by the police authorities, but that has not done by him. He could have even preferred a private complaint under Section 200 of Cr.P.C. But from the record it appears that the appellant has slept over his rights for considerable time and after long lapse of 16 years has approached this Court for reopening the investigation or direction for de novo the investigation into the matter. It is seen from the record that the expungtion report submitted by the police authorities was accepted at the initial stage in the year 2005 itself and the aforesaid order of acceptance of expungtion report has attained finality upto this Hon'ble Court. Thus, in aforesaid fact and circumstances of the case, there is no illegality could be pointed out by the appellant in the order passed by the learned single judge.
Accordingly, the writ appeal sans merit and is hereby dismissed.
(S.A. Dharmadhikari) (Vishal Mishra)
Judge Judge
LJ*/-
LOKENDRA JAIN
2020.10.16
17:41:09 -07'00'