Madhya Pradesh High Court
N.K. Parihar vs The State Of Madhya Pradesh on 20 November, 2018
1
THE HIGH COURT OF MADHYA PRADESH
WP No.27060/2018
(N.K. Parihar vs. State of M.P. & Ors.)
Gwalior, Dated : 20.11.2018
Shri Prashant Sharma, Counsel for the petitioner.
Shri Devendra Chaubey, Government Advocate for
the respondent/State.
This petition under Article 226 of the Constitution of India has been filed challenging the order dated 22.10.2018 passed by Inspector General of Police (complaints), Crime Investigation Department, Police Headquarters, Bhopal by which it has been directed to continue the investigation against the petitioner and other persons.
The necessary facts for the disposal of the present petition in short are that on 29.3.2013 the dead body of the deceased Netram was found hanging on a tree and on the report of one Kirodi Pal, Inquest Report 06/2013 was registered at Police Station Jigna, District Datia.
A Gum Insan Report was lodged on 7.3.2013 which was registered as Gum Insan No.04/2013 by which the missing report of one Anand Gupta was made. Crime No.116/2013 for offence under Section 364(A) of IPC 2 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 and under Section 11/13 of MPDVPK Act was registered at Police Station Kotwali, District Datia. A Special Investigation Team was constituted under the leadership of present petitioner who was posted as SDO(P), Bhander at the relevant time. In the said case, one Rakesh Kumar Gupta by filing a written application expressed his suspicion against the deceased Netram Khangar and Gopal Khangar and, accordingly, the SIT brought Netram Khangar to police station on 19.3.2013 for interrogation purposes. Thereafter, the dead body of Netram Khangar was found hanging on a tree. The family members of deceased Netram Khangar made a written complaint to the District Collector on 30.3.2013 and 19.3.2013. A complaint was made by brother of Netram Khangar that the police had taken him with him, he was detained, was beaten and thereafter he was killed. The dead body of the deceased Netram Khangar was handed over to his family members but his family members refused to perform his last rites and insisted for second postmortem and, accordingly, on 1.4.2013, a team of five doctors of J.R. Hospital conducted the 3 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 postmortem. Thereafter, a magisterial enquiry was ordered to enquire into the allegations of illegal detention of the deceased by the police party as well as the custodial death of the deceased Netram Khangar. On the basis of the report submitted by the then Chief Judicial Magistrate, Datia, the police registered the offence in Crime No.134/2013 for offence under Sections 302, 34, 199, 201, 120-B, 342, 468, 471 of IPC against total 11 persons including the petitioner. In order to maintain independence and purity, the matter was handed over to the CID. Thereafter, it appears that a writ petition was filed by one Ramsharan Prajapati which was registered as W.P.No.8615/2013 challenging the Magisterial Enquiry Report and the said writ petition was disposed of by order dated 20.8.2018 with the following directions:
"1. The challenge to the magisterial inquiry report Annexure P-1 submitted by the CJM, distt. Datia dated 17.09.2013 is repelled.
2. The impugned FIR dated 22.10.2013 bearing Crime No.134/2013 registered at P.S. Jigna Distt. Datia against the petitioner is quashed.4
THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018
3. Respondent no.1 or any other competent authority, as the case may be is directed to apply her/his mind on the findings against the petitioners in the magisterial report dated 17.09.2013 and pass a speaking order as to whether petitioners are liable to be proceeded under the criminal law or in disciplinary proceedings within a period of 60 days from the date of receipt of copy of this order and thereafter proceed accordingly."
Although the petitioner has not placed the copy of the order of this Court on record but the directions given in W.P.No.8615/2013 have been reproduced in the impugned order.
It is submitted by the counsel for the petitioner that in compliance of the order passed by this Court in W.P.No.8615/2013, the matter has been reconsidered by the Inspector General of Police (complaints), CID, Police Headquarters, Bhopal and it has been found that the investigation against some of the police personnel including the petitioner must continue.
Challenging the order dated 22.10.2018, it is 5 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 submitted by the counsel for the petitioner that although the SIT was constituted under the leadership of present petitioner but another case of murder had taken place and the petitioner was assigned with the investigation of the said murder case and, therefore, he was not present in the police station when the deceased Netram Khangar was brought to the police station and on 19.3.2013 the petitioner was having no concern in relation to the present crime.
To buttress his contentions, the petitioner has filed a copy of the FIR in Crime No.49/2013 registered at Police Station Bhander, District Datia. It is submitted that as three persons were killed, therefore, the petitioner had to rush to the place of incidence on 19.3.2013 and thus he was not present in the police station.
Heard the learned counsel for the parties. The present petition has been filed challenging the decision arrived at by the respondent No.3 to continue with the investigation against several persons including the petitioner. According to the allegations, the deceased Netram Khangar was lifted by the police from his house 6 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 and he was kept in illegal confinement and later on, on 30.3.2013 his dead body was found hanging on a tree. In the postmortem report, as many as 18 injuries were found on the body of the deceased.
The contention raised by the counsel for the petitioner in the present writ petition is that on 19.3.2013 as three persons were killed, therefore, he had gone on the spot to investigate the said offence and he was not present when the deceased was allegedly lifted by the police from his house and thus he is not guilty. According to the prosecution case, the deceased was lifted by the police from his house on 19.3.2013 and his dead body was found on 30.3.2013. It is not the case of the petitioner that on 30.3.2013 he was not the in- charge of the SIT. No order has been placed on record to show that the SIT was reconstituted at any point of time by removing the petitioner from the said SIT. Even otherwise by the impugned order, the respondent No.3 has merely directed to continue with the investigation and this Court is of the considered opinion that it would be a very premature stage to come to a conclusion with 7 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 regard to the complicity or innocence of the present petitioner in the case of custodial death.
It is well established principle of law that legitimate prosecution should not be stifled in the mid way. Further the investigation can be quashed only in exceptional cases, where no prima facie case is made out.
The Supreme Court in the case of State of Tamil Nadu vs. S. Martin & Ors. reported in (2018) 5 SCC 718 has held as under:-
"7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for ...... The investigation in any case ought not to have been set at naught but it ought to have been permitted to be taken to its logical end."
The Supreme Court in the case of State of Orissa v. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547 has held as under :
"8. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide.
Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High 8 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.
9. In State of W.B. v. Swapan Kumar Guha, emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus: (SCC pp. 597-98, paras 65-66) "65. ... An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished 9 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed. ...
66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. ... If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence."
(emphasis supplied)
10. On a similar issue under consideration, in Jeffrey J. Diermeier v. State of W.B., while explaining the scope and ambit of the inherent powers of the High Court under Section 482 of the Code, one of us (D.K. Jain, J.) speaking for the Bench, has observed as follows: (SCC p. 251, para 20) "20. ... The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule 10 THE HIGH COURT OF MADHYA PRADESH WP No.27060/2018 which would govern the exercise of inherent jurisdiction of the court.
Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
As the petitioner was the In-charge of the SIT, which according to the allegations, had lifted the deceased, who later on was found hanging, had 18 injuries on his body, this Court is of the considered opinion that the allegations of custodial death requires thorough investigation and the order of the I.G. (Complaints) CID, cannot be quashed.
Accordingly, this petition fails and is hereby dismissed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2018.11.27
19:30:11 +05'30'