Delhi District Court
Sanjeev Kumar vs Furkan on 10 February, 2022
IN THE COURT OF MS. CHARU AGGARWAL : ASJ-02:
CENTRAL : TIS HAZARI COURTS : DELHI
IN THE MATTER OF:-
CNR Number: DLCT01-002374-2022
Cr. Rev. No. 80/2022
Sanjeev Kumar
SHO PS I.P. Estate ..... Revisionist/Petitioner
VERSUS
1. Furkan
S/o Mohd. Nazam
R/o Jhuggi No. T-13,
Balmiki Basti, ITO,
New Delhi.
2. Mobina @ Sabina
W/o Mohd. Nazas
R/o Jhuggi No. T-13,
Balmiki Basti, ITO,
New Delhi. ....... Respondents
Date of Institution : 05.02.2022
Date of Decision : 10.02.2022
JUDGMENT
1. The present revision has been filed by the Station House Officer (hereinafter referred to as "SHO") seeking to expunge the observations made against him and the directions contained in the order dated 06.01.2022 passed by Ld. Metropolitan Magistrate while dismissing the bail applications of both the accused in FIR No. 387/21 registered at police station Cr. Rev. No. 80/2022 1 of 17 Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.02.10 16:24:36 +0530 I.P. Estate.
2. The brief description of the case is that on 23.12.2021, on the complaint of one Jarina, the FIR No. 387/21 u/s 363 Indian Penal Code ( hereinafter referred to as IPC) was registered at PS I.P. Estate alleging that complainant's one year old son has been kidnapped. On the very next date, on 24.12.2021, kidnapped child of the complainant was rescued by the police from the possession of accused Furqan and Mobeena. Both of them were arrested and on 24.12.2021, they were produced by the IO before Ld. Duty Metropolitan Magistrate with request to send them to judicial custody (judicial remand) for 14 days, accordingly, both the accused were remanded to JC till 07.01.2022.
On 04.01.2022, both the accused moved their respective bail applications u/s 437 Code of Criminal Procedure (hereinafter referred to "C.r.P.C.") before the Court of concerned Metropolitan Magistrate. In the reply dated 05.01.2022 filed by the IO, forwarded by the SHO, on the said bail applications it was mentioned that the provisions u/s 370/511 IPC have also been added in the FIR. On receipt of this reply, Ld. Metropolitan Magistrate in the order dated 06.01.2022, while dismissing the bail application of both the accused persons, made the observations against the SHO and IO that the provision of Sections 370/511 IPC have been added by the investigating agency after receiving the bail application in the police station and further observing that the facts and circumstances under Digitally signed Cr. Rev. No. 80/2022 CHARU by CHARU AGGARWAL 2 of 17 AGGARWAL Date:
2022.02.10 16:24:45 +0530 which these provisions were added are not mentioned in the case diary and also could not be explained by them during the hearing of bail application, and while so observing, a detailed reply was called by the Ld. Metropolitan Magistrate from the Commissioner of Police seeking explanation the facts and circumstances under which the provision of 370/511 IPC were added and further directing the concerned DCP to personally supervise the investigation of the case. The relevant portion of the order dated 06.01.2022 with which the revisionist/SHO, I.P. Estate is aggrieved, is reproduced as under: -
"Before parting with this order, I may observe that it is evident from record that initially the present case FIR dated 23.12.2021 was registered for offence u/s 363 IPC and the accused persons were arrested by the IO. It is pertinent to point out that the offence u/s 363 IPC is a bailable offence and it has also been admitted that until 05.01.2022, the charges for offence u/s 370/511 IPC were not added in the case FIR. The statement of mother and sister of victim child u/s 164 CrPC were also recorded on 27.12.2021 and even after such statements, the IO did not add the offences u/s 370/511 IPC in the case FIR. The relevant case diary dated 05.01.2022 is also silent regarding the facts and circumstances which surfaced during the investigation of the case on account of which Sections 370/511 IPC were Cr. Rev. No. 80/2022 3 of 17 Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:24:53 +0530 added in the case FIR. The aforesaid case diary states of having added the offences u/s 370/511 IPC in FIR after the discussion of the IO with the SHO concerned. Even, the IO ASI Sushil Kumar Tyagi and Inspector Sanjeev SHO P.S. I.P. Estate concerned also could not explain about the circumstances under which the aforesaid offences were not added in the case FIR until 05.01.2022 i.e. only after the date when the present bail application was filed (bail application was filed on 04.01.2022). The Court being cognizant of the fact that the investigation is the domain of police and without commenting on the fairness of the investigation being conducted by the IO and at the same time also to avoid any prejudice to the accused persons deems it fit to call a report from Worthy Commissioner, Delhi Police seeking explanation on abovementioned aspects with the further direction that the remaining investigation of the case shall be conducted under the personal supervision of an officer not below the rank of DCP concerned.
Application stands disposed off."
3. Now, SHO/revisionist has filed the revision in hand on the following grounds, that :-
i. After dismissal of the bail application of the accused, Cr. Rev. No. 80/2022 4 of 17 Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:25:00 +0530 the Court below became functus officio and had no power to make any observations against the Investigating agency. For this reliance is placed on "State of NCT of Delhi Vs. Anwar Khan"Crl. MC 2784/21 ;
ii. Investigation is a prerogative of the investigating agency in which the Court cannot interfere. For this reliance is placed on "CBI Vs. Unknown officer of Special Frontier Force & Ors." (215) SC Online 8855 ;
iii. In the disclosure statements recorded on 24.12.2021, both the accused disclosed that they kidnapped the child for the purpose of trafficking and the investigation into the matter is still going on under the provisions of 370/511 IPC ;
iv. Even Ld. MM while dismissing the bail application of the accused order dated 06.01.2022 has no where observed that the offence under section 370 IPC is not made out ;
v. Ld. MM could not direct the investigation to be carried out by officer of particular rank in police. For this reliance is placed on Hemant Dhasmana Vs. CBI ; and vi. The Ld. MM should not have mentioned the facts in the case diary in the order dated 06.01.2021 since the Cr. Rev. No. 80/2022 Digitally signed 5 of 17 by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.02.10 16:25:08 +0530 investigation is at the initial stage and disclosing/writing of facts of the case diary in the order may prejudice the investigation.
4. I have considered the arguments advanced by the Ld. APP & Ld. counsel for revisionist and also perused all the judgements relied on behalf of revisionist.
5. It is settled principle of law that the investigation is the prerogative of the investigating agency in which the Courts should not interfere as the same affects the normal course of probe unless the police exercised its power de-hors their statutory duties and not in accordance with law. The Hon'ble Apex Court recently in "Amar Nath Chobey Vs. Union of India & Ors"
SLP (Criminal) No. 6951/18 decided by Hon'ble Apex Court on 14.12.2020 reiterated this settled proposition of law and referred its earlier judgement on the similar issue titled as "Manohar Lal Sharma VS. Principal Secretary & Ors."
(2014) 2 SCC 532. The relevant portion of "Manohar Lal Sharma (supra)" is reproduced as under: -
"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters Cr. Rev. No. 80/2022 Digitally signed
6 of 17 by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:25:16 +0530 of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the plower or there is abuse of the investigatory power and process by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens.
25. Lord Denning has described the role of the police thus :
"In safeguarding our freedom, the police play a vital role. Society for its defence needs a well-led, well-trained and well disciplined force of police whom it can trust ; and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.
The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises.
Cr. Rev. No. 80/2022 Digitally signed 7 of 17
by CHARU
CHARU AGGARWAL
AGGARWAL Date: 2022.02.10
16:25:23 +0530
They must not search a man's house without authority. They must not use more force than the occasion warrants."
26.One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform . The aim of investigation is ultimately to search for truth and bring the offender to book.
Xxx xxx xxx
39. ... In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference."
6. The observations made in "Manohar Lal Sharma (supra)" are clear that in exceptional cases where the Court finds that the police officer has not exercised his powers as per statutory provisions and putting the personal liberty in jeopardy, the Court may intervene to protect the personal and/or property rights of the citizens.
7. In the case in hand, vide Order dated 06.01.2022, Ld. Metropolitan Magistrate dismissed the bail application of both the accused moved by them u/s 437(1) CrPC and while Cr. Rev. No. 80/2022 Digitally signed 8 of 17 by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:25:30 +0530 dismissing the said bail applications certain observations were made by the Ld. Metropolitan Magistrate against the SHO and IO of the case. The order under challenge, in the present revision, is only in regard to the said observation but this Court while exercising revisional jurisdiction u/s 397 CrPC is empowered to call for and examine the record of the proceedings relating to the case pending before the Court below in order to satisfy itself as to the correctness and legality of such proceedings. Here, the dismissal of bail applications of both the accused persons by Ld. Metropolitan Magistrate and the observations made by him in the said order are interconnected, for the reasons to be discussed in the later part of this order, therefore, while exercising powers of revisional Court this Court would examine the order dated 06.01.2022 passed by Ld. Metropolitan Magistrate as a whole.
8. This Court is examining the order dated 06.01.2022 in entirety, therefore, before proceeding further, I would first like to discuss the powers of the Magistrate to grant bail in cases triable by Sessions Court and entails the punishment for death penalty or life imprisonment since in the case in hand, the bail applications of the accused persons were dismissed by the Ld. Metropolitan Magistrate vide order dated 06.01.2022 observing that the offence u/s 370 IPC is Session triable prescribed punishment for life imprisonment and in the same breath sought clarification from the investigating agency on the facts and circumstances under which these provisions were subsequently invoked after receipt of bail application in the police station.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL
Cr. Rev. No. 80/2022 Date: 2022.02.10
16:25:38 +0530 9 of 17
9. As per Section 437(1) CrPC, the Magistrate is empowered to admit the accused on bail for any non-bailable offence but as per sub clause (i) of Section 437 (1) CrPC, the Magistrate shall not release the accused on bail if it appears to him that "reasonable grounds" exists for believing that he (accused) is being guilty of offence punishable with death or imprisonment for life. Bare reading of Section 437(1)(i) CrPC makes it clear that Magistrate is not prohibited from admitting to bail a person accused of offences punishable with life imprisonment or death. Going by this provision, if, it appears to the Magistrate that the "reasonable grounds" do not exist to believe that the accused has committed the offence punishable as above, he may admit the accused on bail even for the said offences. For this reliance be placed on "Prahlad Singh Bhatti Vs. Delhi" (2001) 4 SCC 280 wherein the Apex Court has held as under : -
Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a Cr. Rev. No. 80/2022 Digitally signed by CHARU 10 of 17 CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:25:46 +0530 person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negtivate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.
(7) Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent.
Assumption of jurisdiction to entertain the Digitally signed by CHARU CHARU AGGARWAL Cr. Rev. No. 80/2022 AGGARWAL Date: 2022.02.10 11 of 17 16:25:57 +0530 application is distinguishable from the exercise of the jurisdiction."
"While allowing this appeal ............. We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a court of Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life."
10. In the same judgement the Hon'ble Apex Court has observed that for the purpose of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and the prosecution will be able to produce evidence in support of the charge. It is not expected at this stage of bail, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
11. Next, in clause 2 of 437 CrPC, if the Court, at any stage, of investigation or trial finds that there are no reasonable grounds for believing that the accused has committed non- bailable offence but further enquiry is required into the guilt, the Cr. Rev. No. 80/2022 Digitally signed 12 of 17 by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:26:04 +0530 accused "shall" be admitted on bail by the Court. The word used in this provision is "shall" and not "may" as used u/s 437 (1)(i) CrPC.
12. Reverting back to the facts of the present case, here, the revisionist being SHO of I.P. Estate is primarily aggrieved by the observations made by the Ld. Metropolitan Magistrate against him noting that initially the FIR was registered u/s 363 IPC which is a bailable offence but suddenly, after bail applications were filed by the accused persons, Sections 370/511 IPC were also invoked in the FIR and during the course of arguments on the bail applications, IO and SHO both could not give satisfactory explanation to for such a sudden addition of Section 370/511 IPC. Ld. Metropolitan Magistrate, even on perusal of case diary, did not find any reasons for invoking these provisions. The observations made by Ld. Metropolitan Magistrate in the impugned order does not set out the specific reasons for recording remarks against the investigating agency. It seems that such observations were made primarily because Section 370/511 of IPC were invoked sans any allegations to this effect in the FIR and for lack of material collected on this count in the investigation conducted so far. It would be pertinent to note here that the Ld. Metropolitan Magistrate, despite giving his observations that the police did not have sufficient material to invoke provisions of 370 IPC, yet he did not exercise powers, though discretionary, under section 437 (1)(i) CrPC which empowers him to admit an accused to bail if reasonable grounds do not exist to believe that accused has committed an offence Cr. Rev. No. 80/2022 Digitally signed by CHARU 13 of 17 CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:26:11 +0530 punishable for life imprisonment. In such an event, the Magistrate may exercise his powers of granting bail in a case punishable for death or life imprisonment. Here, if the Ld. Metropolitan Magistrate was not inclined to exercise his discretion given to him by virtue of Section 437(1)(i) CrPC, then he was duty bound to exercise powers u/s 437(2) CrPC to admit accused on bail the moment he was of the view that sufficient grounds were not there with the investigating agency to invoke provision of 370 IPC. It bears the repetition to state that the word used in 437 (2) CrPC is "shall" and not "may" thus carrying the legislative mandate that in cases covered by the said sub section, the Magistrate shall grant bail (subject to the restrictions stated therein). It would also be relevant to note here that Section 437(2) CrPC nowhere remotely lays down that in the cases having punishment of life imprisonment or death, the Magistrate would not invoke the mandate of this provision since the words used in the said provision are "if the Court finds that there are no reasonable grounds to believe that accused has committed a non-bailable offence." In this provision, no difference has been carved out between the offences carrying punishment of life imprisonment or death and other offences carrying lessor punishment.
13. In the case at hand, as per Ld. Metropolitan Magistrate, the investigating agency did not have any material for invoking Section 370/511 IPC, therefore, by not admitting the accused persons on bail by invoking 437 (2) CrPC, the Court below on the face of it has acted contrary to the statutory Cr. Rev. No. 80/2022 Digitally signed 14 of 17 by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:26:18 +0530 provisions of bail envisaged u/s 437 CrPC and as duly interpreted by the Hon'ble Apex Court in Prahlad Singh's case (supra). It would be pertinent to note here that after dismissal of bail applications of both the accused persons vide order dated 06.01.2022, passed by Ld. Metropolitan Magistrate, their bail applications were also dismissed by the Court of Ld. ASJ vide order dated 14.01.2022. I would like to clarify here that this Court is not sitting as an Appellate Court of its coordinate bench, who dismissed the bail applications of the accused persons but the perusal of order dated 14.01.2022 passed by Ld. ASJ shows that the entire facts and circumstances of the case were not brought to the notice of concerned ASJ as even the said order reflects that the bail applications of the accused persons were dismissed only after considering the allegations of kidnapping which though, is a bailable offence. It may be noted that during the course of arguments on the present revision also, Ld. APP on being specifically asked, could not show any material, which could prima-facie, make out a case for addition of Section 370/511 IPC in the FIR originally registered only u/s 363 IPC, a bailable offence. Here, the personal liberty of two individuals is at stake, therefore, if, they, at this stage, are not admitted on bail, grave injustice would be caused to them since initially FIR was registered only under the bailable offences and the police could not collect any material against them for any non-bailable offence including the provisions of 370/511 IPC that were subsequently invoked in the FIR. Therefore, this Court, while exercising revisional jurisdiction u/s 397 CrPC, deems it Digitally signed by CHARU Cr. Rev. No. 80/2022 CHARU AGGARWAL 15 of 17 AGGARWAL Date:
2022.02.10 16:26:25 +0530 appropriate to admit both the accused persons on bail subject to furnishing of bail bond of Rs.15,000/- each and surety bond of like amount to the satisfaction of concerned Metropolitan Magistrate. It is made clear here that if during investigation any material for commission of any non-bailable offence is found against the accused persons, the IO would be at liberty to arrest them after giving two days prior notice to accused persons.
14. Insofar as, the observations made by Ld. Metropolitan Magistrate against investigating agency and the directions to seek report from Commissioner of Police relating to circumstances under which Section 370/511 IPC were added in the FIR originally registered only u/s 363 IPC are concerned, this Court is of the view that the above directions given by the Court below are premature at this stage having regard to the fact mentioned by the IO/SHO in the status report dated 05.01.2022 filed before Ld. Metropolitan Magistrate mentioning that further investigation to verify the role of accused persons in illegal trafficking or offence is under further investigation by the police.
It may be noted that the IO/SHO of PS I.P. Estate, who had filed the above status report might have added Section 370/511 IPC in the original FIR in view of disclosure made by the accused persons after their arrest. Since matter on this aspect is still under investigation, no directions in this regard are called for from the Commissioner of Police and therefore, the directions given by Ld. Metropolitan Magistrate in this regard are set aside and the directions of Ld. Metropolitan Magistrate that the investigation would be conducted under the personal supervision Cr. Rev. No. 80/2022 Digitally signed by CHARU 16 of 17 CHARU AGGARWAL AGGARWAL Date: 2022.02.10 16:26:32 +0530 of DCP is modified to the extent that the further investigation would be conducted under the supervision of concerned ACP.
15. In view of aforesaid discussion, the present revision is disposed off.
The copy of this order be sent to concerned Jail Superintendent with directions to inform the accused persons that they have been admitted on bail and SHO is directed to inform the family of the accused persons that both the accused have been admitted on bail, subject to the conditions mentioned in para No. 13 of this order.
Trial Court Record be sent back to the concerned court alongwith copy of this order.
Revision file be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date: 2022.02.10
16:26:38 +0530
Announced in the open court (Charu Aggarwal)
on 10.02.2022 ASJ-02/Central
Distt./THC/Delhi(j)
Cr. Rev. No. 80/2022 17 of 17