Jammu & Kashmir High Court
Gurmeet Kour vs State And Ors. on 28 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Rev. No. 44/2009 & MP No. 24/2009
Date of decision:28.10.2017
Gurmeet Kour Vs. State and Ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : None.
For the Respondents(s) : Mr. S. S. Nanda, Sr. AAG for respondent
No.1 to 5.
None for respondent No.6.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Originally a writ petition was filed by petitioner, which was numbered as OWP No.275/2005; but on 14.5.2009, it was treated as Revision and has been numbered as Cr. Rev. No.44/2009. Through the medium of present revision petition, petitioner seeks issuance of direction thereby directing the respondents to investigate the matter in case FIR No.127/2004 dated 11.12.2004 and present the challan under proper Sections before the competent Court of law for trial.
2. It is stated in the petition that the petitioner on 11.12.2004 left her house for Main Road Kunjwani and at about 12.30 p.m., the petitioner was on her way on the road which leads from Village Bandhu Rakh to Main Road, Kunjwani and when the petitioner reached near J.K. Public School, Kunjwani, Jammu a Maruti Car bearing Registration No. JK-02T-5515 driven by the respondent No. 6 in a rash and negligent manner hit the petitioner from the back and cause serious injuries to the petitioner. The petitioner was being seriously injured shifted from the place of accident to the Govt. Hospital, Gandhi Nagar, Jammu. The petitioner remained Cr. Rev. No.44/2009 Page 1 of 7 2 hospitalized in Govt. Hospital Gandhi Nagar, Jammu for three days. The case of the petitioner was registered as an MLC case under No. 1261.
3. It is also stated that because of the serious injuries caused to the petitioner by the rash and negligent driving of respondent No. 6 the condition of the petitioner became deteriorated and on 14.12.2004 the petitioner was shifted from Govt. Hospital, Gandhi Nagar, Jammu to Govt. Medical College, Jammu. The case of the petitioner was registered as MLC case under No. 6970 in Govt. Medical College, Jammu. There were multiple injuries on the body of the petitioner and the petitioner was also caused a fracture in the left hip. The petitioner was operated in Govt. Medical College, Jammu and the petitioner was remained hospitalized in Govt. Medical College Hospital, Jammu from 14.12.2004 up to 29.12.2004 i.e. for 15 days. The condition of the petitioner has not still improved and the petitioner is still under treatment and the doctors have advised the petitioner to further come for regular check ups and operation. That immediately after the accident i.e. on 11.12.2004, the husband of the petitioner approached the concerned police station i.e. Police Station, Gangyal, Jammu for lodging the FIR against the respondent No. 6 in proper Sections as there was a fracture in the left hip of the petitioner and there were also multiple injuries on the body of the petitioner. The husband of the petitioner further stated that the case of the petitioner has been registered as MLC case No. 1261 in Govt. Hospital, Gandhi Nagar, Jammu and MLC case No. 6970 in Govt. Medical College Hospital, Jammu as the petitioner was referred from Govt. Hospital Gandhi Nagar, Jammu to Govt. Medical College Hospital, Jammu being a case of serious nature. All the relevant documents are filed as Annexures.
4. It is further stated that the In-charge Police Station, Gangyal, Jammu i.e. respondent No.5 told the husband of the petitioner that he will investigate the matter and the challan will be presented before the competent court of Cr. Rev. No.44/2009 Page 2 of 7 3 law after investigation. The In-Charge Police Station has not heeded the request of the husband of the petitioner so the husband of the petitioner on 14.12.2004 when the petitioner was admitted in Govt. Medical College, Jammu made a request to the said office to register the FIR against the respondent No. 6 for offences under Section 279, 337, 325 RPC. The respondent No. 5 again not heeded the request of the petitioner and delayed by one pretext and the other and the case was not registered against the respondent No. 6 under appropriate Sections of RPC.
5. It is stated that the petitioner being aggrieved of the illegal action of the respondent No. 5 approached the Dy. Superintendent of Police City South, Jammu for a direction to the respondent No. 5 to register a case against the respondent No. 6 in offences under Section 279, 337, 338 RPC. The respondent No. 4 also directed the respondent No. 5 for taking necessary action under law but the respondent No. 5 has not properly investigated the matter and the challan was not presented after making proper investigation. The respondent No. 6 pleaded guilty to the charge before the competent court of law. The husband of the petitioner tried his best to know the fate of the case but the respondent No. 5 never disclosed the petitioner that the challan has been presented before the competent court of law and the respondent No. 6 has been pleaded guilty to the charge. The husband of the petitioner came to know about the presentation of the challan and pleading of guilty of the respondent No. 6 with the great efforts by enquiring the subordinate courts Jammu. The petitioner applied for certified copy of the challan which is supplied to the petitioner. The petitioner came to know about the presentation of the challan in offences under Section 279 of the RPC only when the petitioner applied for certified copy of the challan and the petitioner also astonished to come to know that the respondent No. 5 has not properly investigated the matter and presented the challan before the competent Cr. Rev. No.44/2009 Page 3 of 7 4 court of law. That it is a bounded duty of the respondent No. 6 to investigate the matter and present the challan under the appropriate Sections of RPC and the respondent by not presenting the challan after proper investigation and under the proper Sections of RPC the rights of the petitioner have been violated guaranteed to her under the Constitution of India.
6. With the aforementioned submissions made in the petition, petitioner has prayed that the instant petition be allowed with a direction to respondents to investigate the matter in FIR No. 127/2004 dated 11.12.2004 and present the challan under relevant provisions of law before the Competent Court of law for trial.
7. Objections stands filed on behalf of respondent No. 1 to 5 stating therein that no right of the petitioner much less any Constitutional, legal or fundamental has been assailed or threatened to be violated by respondents, the writ petition is totally misconceived and requires to be rejected. That the relief prayed for in the writ petition cannot be granted by the Hon'ble Court as a challan already stands filed against the respondent No.6, the writ petition, therefore, ceases to be maintainable and needs to be dismissed. That the present writ petition raises disputed questions of facts to which this Hon'ble Court while exercising extra- ordinary powers under writ jurisdiction cannot probe into while exercising powers under Article 226 read with Section 103 of the Station Constitution. The writ petition is without any jurisdiction and be rejected at the very threshold. It is stated that on 11.12.2004 at 6.45 PM, the Police Station, Gangyal received an information from reliable source that one Maruti Car bearing registration No. JK02T-5515 being driven by one Kuldeep Singh, rashly and negligently who could not control the vehicle on way from Village Seaora towards Kunjwani and met with an accident near J&K Public School and as a result, the vehicle got damaged. It was Cr. Rev. No.44/2009 Page 4 of 7 5 also reported that no body was hurt in the said accident. On receiving this information the Police of P/S Gangyal registered an FIR No. 127/2004 for offence U/S 279 RPC. That the investigation was assigned to Head Constable Guchu Ram who investigated the matter, seized the vehicle, recorded the statement of witnesses and presented challan on 14.12.2004 in the Competent court which ended in conviction and the accused was fined. That no such information was received in the Police Station, Gangyal nor any person approached the respondents for the said purpose. It is also denied that husband of the petitioner ever approached the P/S Gangyal nor any information was supplied / provided to the respondent regarding injuries received by the petitioner as alleged. That no information regarding the receiving of injuries to the petitioner was ever provided by the Hospital authorities as alleged.
8. It is further stated in the objections that P/S Gangyal registered an FIR on 11.12.2004 on the day of occurrence u/s 279 RPC and the I.O after thorough investigation presented a challan on 14.12.2004 before the competent court where the accused was convicted and sentenced to pay fine. That the husband of the petitioner never approached the P/S, Gangyal as alleged. That the Investigating Officer promptly after receiving the information commenced the investigation, recorded the statements of witnesses and produced the challan with in three days of the accident. That had the petitioner or her husband any grievance against the investigation they could have approached the higher authorities i.e. respondent No. 3 for redressal of the same. That the petitioner has failed to make out a case requiring interference by the Hon'ble Court under Article 226 read with Section 103 of the Constitution of State. The writ petition for re-investigation of the case when the challan has already been presented resulting into conviction by the competent court ceases to be maintainable and requires to be rejected.
Cr. Rev. No.44/2009 Page 5 of 7 69. None appeared on behalf of petitioner.
10. Heard learned counsel for respondent Nos.1 to 5 and gone through the file meticulously.
11. Bare perusal of order of court below (JMIC 2nd Additional Munsiff, Jammu) dated 14.12.2004 it is evident that police of police station Gangyal, produced a challan in FIR no.127/2004 u/s 279 RPC before said court against one Kuldeep Sharma and on same date he confessed his guilt and court below imposed a fine of Rs. 500/- and disposed of challan.
12. Perusal of facts of case would reveal that on 11.12. 2004 an information was received from reliable source that at 1 pm, one Maruti Car 5515/JK02T was coming toward Kunjawani; it was being driven by Kuldeep Sharma in rash negligent manner; when it reached Jammu Public School, he could not control the vehicle and caused accident, the vehicle was damaged; however no person was injured; on this FIR u/s 279 RPC was registered and investigation was commenced by HC, who recorded the statement and found offence u/s 279 proved against the Kuldeep Sharma.
13. From perusal of FIR, it reveals that it has not been sent to concerned Magistrate till 14.12.2004; it has been received on 14.12.2004 on the date when challan was produced. Further, from the perusal of challan, it reveals that only one statement of eye witness namely Chander Shekhar has been recorded; he is also witness to seizure of car along with one constable. The place of occurrence is busy place and time was 1 PM .
14. Petitioner has specifically pleaded that she was seriously injured on 11.12.2004 due to accident and she was admitted in Govt. Hospital Gandhinagar as MLC case no.1261. On 14.12.2004 she was referred to GMC. She sustained multiple injuries and was operated. The photocopy of Medical record of GMC Orthopedic Department annexed with petition clearly depicts that Petitioner sustained injury in RTA by Marti Car from Cr. Rev. No.44/2009 Page 6 of 7 7 behind; there is MLC no. 6970-MRD no.370476; as per medical record she has remained in hospital from 14.12.2004 to 29.12.2004.
15. In view of above facts, the investigation had not been conducted in fair manner; this is further supported with the fact that it has been got completed within two days from date of accident. The investigation seems to have been conducted on some extraneous consideration by police official, who was SHO then and I/O.
16. This action of police officials is highly unacceptable; police is custodian of life and properties of citizen. But in present case, it appears those police officials, who were at the helm of affairs in police station at that time, has helped the accused on some extraneous consideration.
17. Hence, order of court below is set aside. Trial court is directed to call the accused and hear petitioner herein and accused, and thereafter shall pass appropriate orders for further investigation in terms of section 173 (8) Cr.P.C. A copy of this order be also sent to IGP, Jammu for taking appropriate action under law against the then SHO and I/O. The said action shall be completed within two months. Compliance report be filed before the Registry after two month.
18. This petition stands disposed of in the afore mentioned terms.
(Sanjay Kumar Gupta) Judge Jammu 28.10.2017 Pawan Cr. Rev. No.44/2009 Page 7 of 7