Madhya Pradesh High Court
Arvind Yadav @ Kalli vs The State Of Madhya Pradesh Thr on 3 May, 2018
1 MCRC-9624-2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-9624-2018
(Arvind Yadav @ Kalli Vs. State of M.P.)
Gwalior, Dated : 03.05.2018
Shri Anil Mishra, Counsel for the applicant.
Shri R.K. Awasthi, Public Prosecutor for the
respondent/State.
Shri A.S. Tomar, Counsel for the complainant. Mr. Vinod Vinayak Karkare, SHO, P.S. Sirol, District Gwalior is present in person. Although Mr. Karkare was not asked to remain present, however, it appears that the State Government, looking to the seriousness of the controversy involved in this case, has thought fit that Mr. Karkare, SHO, P.S. Sirol, District Gwalior would be able to effectively place the case of the State before the Court and, therefore, the State Government appears to have sent Mr. Karkare on its own, for putting forward the stand of the police in this matter.
The State has filed a reply today itself after taking permission of this Court. Although original copy of the reply has not been received from the Office so far, therefore, it is not known whether the reply has been filed so far or not but the Public Prosecutor has made a copy of the reply, available to the Court. After going through the reply, it is clear that the State has not complied with the order dated 26.03.2018 passed by this Court in this case. Accordingly, Mr. Karkare was asked as to why the order dated 26.03.2018 has not been complied with, then it was replied by him that he cannot understand English, therefore, he is not able to answer 2 MCRC-9624-2018 this query. Again, another question was put to Mr. Karkare that whether he is able to understand the reply which has been filed by the State or not ? Again Mr. Karkare expressed his inability. The third question was put to Mr. Karkare that whether he is in a position to answer any query raised by this Court or not, then again Mr. Karkare expressed his inability. It is really surprising that in a case of such an importance, the State Government has shown confidence upon an officer who does not know English language, who does not know the facts of the case and has no knowledge about the law. However, it is the prerogative of the State Government to send any representative of their own choice on whom they have firm belief that the stand of the State Government shall be effectively put forward by their representative. Thus, it is clear that the Court is not going to get any assistance from Mr. Karkare. Then, again a question was put to Mr. Karkare that whether he would be in a position to communicate the order which is going to be passed in this case to his superior police officers or not, then it was replied by him that in case if it is passed in English, then he would not be able to communicate the order in letters and spirit. Under these circumstances for the convenience of Mr. Karkare, the Court proposes to pass some part of the order in Hindi.
bl U;k;ky; ds }kjk fnukad 26-03-2018 ds vkns'k ds vuqlkj 'kklu dks] 'kklu ds vkns'k fnukad 05-01-2018 ftlesa fd ;g mYysf[kr fd;k x;k Fkk fd Jh vkj-,l- dkSy ds fo:) mfpr dk;Zokgh dh tk,xh] ds rkjrE; esa fjiksVZ dks is'k djus gsrq funsZf'kr fd;k x;k FkkA 3 MCRC-9624-2018 'kklu dks ;g Hkh vknsf'kr fd;k x;k Fkk fd Jh vkj-,l- dkSy ds }kjk fn, x, tkap izfrosnu ls lacaf/kr lHkh nLrkost ftlesa fd Jh dkSy ds vkokxeu lac/a kh jkstukepk lkUgk vFkok vkokxeu laca/kh foLr``r tkudkjh ml le; ds nkSjku dh nh tk, ftl le; esa Jh vkj-,l- dkSy vkosnd ds }kjk fn, x, vkosnu ij tkap dj jgs FksA 'kklu ds vf/koDrk dks ;g Hkh vknsf'kr fd;k x;k Fkk fd og lHkh nLrkost bl U;k;ky; ds le{k izLrqr djsa fd Jh vkj-,l- dkSy }kjk fn, x, >wBs tkap izfrosnu ij D;k dk;Zokgh izLrkfor gS] ftldk mYys[k vkns'k fnukad 05-01-2018 esa fd;k x;k gSA ml vkns'k esa ;g Hkh mYysf[kr fd;k x;k Fkk fd ;g vk'p;Z dh ckr gS fd tc Jh vkj-,l- dkSy Xokfy;j esa inLFk ugha gSa vkSj Xokfy;j esa ,d vU; vkbZ-th- dh inLFkkiuk ds ckotwn Hkh LFkkuh; iqfyl vf/kdkjh ftlesa fd vkbZ-th- iqfyl Xokfy;j ,oa ,l-ih-] Xokfy;j Hkh 'kkfey gSa mUgsa f'kdk;r u djds] vkosnd us Jh vkj-,l- dkSy dks laidZ fd;k] tks fd Hkksiky essa inLFk gSa rFkk mudk bl izdj.k esa {ks=kf/kdj Hkh ugha gS] D;ksafd bl izdj.k dh foospuk iqfyl Fkkuk fljksy ftyk Xokfy;j }kjk dh tk jghs FkhA vkt tks 'kklu }kjk tokc is'k fd;k x;k gS mlesa mijksDr fdlh Hkh izdkj dh tkudkjh dk vHkko gS ftlls ;g Li"V izrhr gksrk gS fd 'kklu tkucw>dj leLr nLrkost bl U;k;ky; ls Nqik jgh gSA Jh djdjs 'kklu dk izfrfuf/kRo iqfyl foHkkx ds Lofoosd ds vk/kkj ij dj jgs gSa] tcfd og bl U;k;ky; ds fdlh Hkh iz'u pkgs og fof/kd gks vFkok rF;kRed gks] dk tokc nsus esa vleFkZ gSaA Jh djdjs dh mifLFkfr bl U;k;ky; esa bl izdj.k esa vkxs dk vkns'k ikfjr djus ds fy, u rks vko';d gS vkSj u gh og fdlh Hkh izdkj ls bl U;k;ky; ds fy, lgk;d gks jgs gSa ,oa Jh djdjs }kjk ;g Hkh Li"V rkSj ij crk fn;k x;k gS fd mijksDr fgUnh esa fn;k x;k vkns'k muds le> esa vk x;k gSA Since the remaining part of the order can be passed without the assistance of Mr. Karkare, therefore, the 4 MCRC-9624-2018 question that whether without withdrawing the investigation from the Investigating Officer, a superior officer can direct for a parallel independent enquiry or not, can be considered with the help of the counsel for the applicant, Public Prosecutor as well as the counsel for the complainant, therefore, they are heard on this issue.
In reply to the query made by this Court, the counsel for the State has submitted that a detailed reply in this regard has been filed by the State in MCRC No. 384/2018. In the said reply, a circular dated 25/6/2010 issued by the Director General of Police, Madhya Pradesh, Bhopal has been annexed and that circular still holds the field. The said circular has been issued by the State Government to ensure the compliance of the order passed by this Court in the case of Sanjay Singh & Ors. v. State of M.P. & Ors. reported in 2006(2) MPLJ 324.
In the case of Sanjay Singh (Supra), on the recommendation of a Member of Parliament, the S.P. Morena directed the S.D.O.(P) to conduct an enquiry. S.D.O.(P) conducted the inquiry and found that some of the accused persons were not involved in the crime. Thus, it was argued that on account of directions of parallel enquiry or inquiry by some superior officer, wrong message is going to the public that if somebody is in a position to wield influence, he can shun the investigation against him by adopting influential method. The Division Bench of this Court, after considering various aspects of the matter, held that Criminal Investigation Department is defined in Regulation 7. Normally, investigation should not be interfered with at the instance 5 MCRC-9624-2018 of accused. However, if some irregularity is found or it is found that an innocent citizen is falsely implicated, the case should be examined by Superintendent of Police and he may either depute Senior Officer to investigate the matter or may investigate the case personally. But once investigation commenced, it should be completed without interference. Regulation 879 relates to supervision by Superintendent of Police in cases where investigation has been refused. However, where the Superintendent of Police is satisfied for the reasons to be recorded in writing that proper investigation is not carried out, then investigation officer may be changed, but practice of handing over case to CID is deprecated. Accordingly, the direction to handover the investigation to the CID was quashed.
The relevant portion of the circular dated 25.06.2010 reads as under:-
^^mijksDr funsZ'kksa esa ;g Li"V fd;k x;k gS fd vkjksih@lansgh ds vkosnu ij vijk/k dh foospuk izHkkfor ugha gksuk pkfg,A vr% Li"V fd;k tkrk gS fd %& 1& ;fn foospuk ds nkSjku bl izdkj ds vkosnu ;k f'kdk;r i= izkIr gksrs gSa vFkok lekpkj i=ksa esa dksbZ lekpkj izdkf'kr gksrk gS rks vkosnu ;k lekpkj tkWp mfpr ek/;e ls foospd dks Hkstdj tkWp foospuk ds va'k ds :i esa gh djuk pkfg;s fdlh Hkh n'kk esa foospd ls lekukarj vFkok fHkUu tkWp i``Fkd ls izkjEHk ugh djk;h tkuh pkfg;sA^^ It is submitted by the counsel for the State that the word "enquiry" mentioned in the circular should not be construed as an enquiry as mentioned in the CrPC, but it should be construed as an enquiry as required under Section 4 of the Police Act and, therefore, the senior 6 MCRC-9624-2018 police officer can always direct for an enquiry to find out the truth in the complaint made by the aggrieved person.
Considered the submissions made by the counsel for the State.
Section 4 of the Police Act reads as under:-
"4. Inspector-General of Police etc.- The administration of the police throughout a general police- district shall be vested in an officer to be styled the Inspector-General of Police, and in such Deputy Inspectors-General and Assistant Inspectors-General as to the State Government shall seem fit.
The administration of the police throughout the local jurisdiction of the Magistrate of the District shall, under the general control and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendents as the State Government shall consider necessary."
It is clear from this Section that this Section provides that the administration of the police shall be vested in an officer mentioned in this Section. Whether "administration" would include "supervision of investigation" or not, is a moot question for determination. At this juncture, the counsel for the State is unable to answer that whether the "administration" would include the "supervision of the investigation" or not? However, the question that whether the superior officer can supervise the investigation or not, is not important because the senior police officer can always issue instructions to the Investigating Officer to consider various aspects as suggested by the superior officer while conducting the investigation. Thus, the supervision of the 7 MCRC-9624-2018 investigation by a superior officer is not a phenomena which is not approved by the law. However, the question for determination is that whether without issuing instructions to the Investigating Officer and without withdrawing the investigation from the Investigating Officer, whether there can be a parallel enquiry into the offence or not? It is well established principle of law that for a single offence, there cannot be two FIRs and the natural consequence of the law is that for a single offence, there cannot be two investigations. Thus, it is clear that the "enquiry" cannot be equated with the "investigation". If the superior officer is of the view that the Investigating Officer is not investigating the matter in a free and fair manner, then he is well within his rights to withdraw the investigation and hand over to other police officer. However, there cannot be two parallel investigations in a single offence simultaneously. Thus, the stand taken by the State in the reply that by virtue of Section 4 of the Police Act, the superior officer can always direct for an independent parallel enquiry cannot be accepted at this stage.
Thus, this Court is of the view that the circular which has been issued by the State Government mentioning specifically that in any condition, there should not be any parallel enquiry in the matter appears to be correct. Since, it is being observed by this Court that in various cases, a parallel enquiry is being ordered by the superior officer without withdrawing the investigation, thus creating a very critical situation where the Investigating Officer, after concluding the investigation, 8 MCRC-9624-2018 forms an opinion that an offence has been committed by a particular person, but at the same time, without any authority or without any provision in the CrPC for the same, a parallel independent enquiry is being conducted under the orders of the superior police officer giving clean cheat to the accused persons. Enquiry by the police during the pendency of investigation is an unknown feature in the CrPC.
It is next submitted by the counsel for the State that the parallel enquiry conducted by the superior police officer may be considered as a part of the investigation and, therefore, it may not be termed as a parallel enquiry.
The submission made by the counsel for the State cannot be accepted for the simple reason that there cannot be two different parallel investigations in respect of the same offence. Under the provisions of CrPC, it is the Investigating Officer, who can conduct the investigation. Furthermore, although the superior officer can issue instructions to the Investigating Officer, as to how the investigation is to be done but such instructions cannot be substituted by a finding recorded in parallel enquiry which has no legal foundation in law.
In view of the above, this Court is of the view that the circular dated 25.06.2010 issued by the Director General of Police, State of Madhya Pradesh, Bhopal is in consonance with the law, but in utter violation of the said circular, independent parallel enquiries are being directed without withdrawing the investigation which results in hampering of the investigation.
9 MCRC-9624-2018 Under these circumstances, this Court has no hesitation in directing that henceforth no parallel enquiry shall be conducted in any case till further order, and all the S.P.s are directed to strictly comply the circular dated 25.06.2010 issued by Director General of Police, Mahdya Pradesh. The Director General of Police is also directed to immediately issue instructions to all the S.P.s in this regard.
Further, the State is directed to comply the order dated 26.03.2018 positively by producing all the documents which have been mentioned in the order dated 26.03.2018.
Since the reply has been filed along with the affidavit of Shri Ashish Singh, Superintendent of Police, Gwalior, therefore, it shall be his duty to produce all the documents as mentioned by this Court in order dated 26.03.2018.
Since, this matter pertains to the bail application of an accused, therefore, the matter cannot the kept pending for an unlimited period. Thus, it is made clear that adjournment shall not be granted on any ground.
List this case on 9th of May, 2018 at serial No. 2. A copy of this order be supplied to Public Prosecutor for necessary information and compliance.
(G.S. Ahluwalia) Judge Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2018.05.04 17:50:17 +05'30'