Punjab-Haryana High Court
Sukhwinder Singh Alias Peter vs State Of Punjab And Others on 7 January, 2013
CRM-M No. 37490 of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM-M No. 37490 of 2012(O&M)
Date of Decision: 07.01.2013
Sukhwinder Singh alias Peter ........Petitioner
versus
State of Punjab and others ......... Respondents
CORAM: Hon'ble Mr. Justice Ajay Tewari
Present: Mr. G.S.Gandhi, Advocate
for the petitioner.
Ms. Amarjeet Khurana, Addl. AG, Punjab.
Mr.Ankush Anand, Advocate.
Mr.Ankur Mittal, Advocate
for the complainant.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J. (Oral):
This petition was originally filed with a prayer that the investigation of the case bearing FIR No.269 dated 06.10.2012, under Sections 376/420/506 IPC( subsequently section 328 IPC was added) be entrusted to some independent agency.
The allegations are that actually the respondent No.3 had an axe to grind against the petitioner and has got this false FIR recorded by procuring it from the complainant who is herself a previous convict and against her two FIRs are pending. The case put forth against the petitioner CRM-M No. 37490 of 2012(O&M) 2 by the complainant is that he came close to her on the pretext that he was a divorcee and wanted to marry her and on that pretext developed intimacy with her and later on it transpired that he was not a married man. At that stage the complainant tried to withdraw from the relationship but the petitioner on one occasion intoxicated her, had sex with her and also made a movie. Thereafter he also tried to blackmail the complainant.
Learned counsel for the petitioner has argued that right from the first date when the petitioner was summoned in the complaint he has been making a grouse about the conduct of respondent No.3 and despite the fact that the orders were passed by the superior officers for transferring the investigation to some other officers, respondent No.3 presented the challan in court through respondent No.4. As per learned counsel even though the challan has been presented, yet the matter should be referred to some independent agency. In this context he has relied upon Rubabbuddin Sheikh v. State of Gujarat and others reported as 2010(1) RCR(criminal) 738 wherein the Hon'ble Supreme Court ordered reinvestigation of the Sohrabuddin/Kausarbi abduction/murder case.
In the present case the allegations have been mentioned above. The only witness is the complainant. The challan has been presented. In such a case virtually no investigation can be carried out at this stage. If the petitioner is able to discredit the testimony of the complainant he would be entitled to the benefit thereof.
Learned counsel has further argued that the mere fact that challan has been presented should not enable the guilty policeman to go scot free. There can be no doubt with this proposition, however, question is CRM-M No. 37490 of 2012(O&M) 3 whether at this stage any action can be taken against the said policeman. Of course, it would be open to the petitioner to take independent action against any person who has misused the process of law including any policeman.
The third prayer made is that action should be taken against the complainant under Section 340 Cr.P.C. As per learned counsel there is a great divergence between the signatures of the complainant on the original complaint and on the affidavit filed by her in this Court. Learned counsel for the complainant has sought to explain the discrepancy in the signatures by saying that the complainant is otherwise an illiterate lady who just knows how to write her name and, therefore, having seldom written it has no well defined signatures. He has also pointed out that in any case the contents of the original complaint and the affidavit are in no way contradictory to each other and the complainant owns both of them.
In my opinion at this stage no action can be taken against the complainant under Section 340 Cr.P.C.
Learned counsel for the petitioner has also relied upon Dayal Singh and others v. State of Uttaranchal reported as AIR 2012 SC 3046 wherein the Hon'ble Supreme Court has authoritatively laid down the requirement of fair investigation in the following terms:-
"16. The Investigating Officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the police manual and the known canons of medical practice, respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can sometimes prove fatal to the case of the prosecution. An Investigating Officer is completely responsible CRM-M No. 37490 of 2012(O&M) 4 and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. But, at the same time, the default and omission would have a reasonable chance of defeating the case of the prosecution in some events and the guilty could go scot-free. We may illustrate such kind of investigation with an example where a huge recovery of opium or poppy husk is made from a vehicle and the Investigating Officer does not even investigate or make an attempt to find out as to who is the registered owner of the vehicle and whether such owner was involved in the commission of the crime or not. Instead, he merely apprehends a cleaner and projects him as the principal offender without even reference to the registered owner. Apparently, it would prima facie be difficult to believe that a cleaner of a truck would have the capacity to buy and be the owner, in possession of such a huge quantity, i.e., hundreds of bags, of poppy husk. The investigation projects the poor cleaner as the principal offender in the case without even reference to the registered owner.
17. Even the present case is a glaring example of irresponsible investigation. It, in fact, smacks of intentional mischief to misdirect the investigation as well as to withhold material evidence from the Court. It cannot be considered a case of bona fide or unintentional omission or commission. It is not a case of faulty investigation simplicitor but is an investigation coloured with motivation or an attempt to ensure that the suspect can go scot free. ................."CRM-M No. 37490 of 2012(O&M) 5
As mentioned above the present is a case of rape. The whole thing turns on the testimony of the prosecutrix. If the petitioner is able to impeach her credibility the case will fall by the wayside. As far as the police is concerned, it is not disputed that after the prosecutrix made the complaint on 10th of September, 2012, the petitioner was called twice to the police station to give a statement and FIR was lodged on 06.10.2012 presumably because the prosecutrix stuck to her guns. Apart from arguing that respondent No.3 did not transfer the records of the case to the other officer as directed by the higher authority, no such case of mis-investigation as brought out by the Hon'ble Supreme Court in the above said judgment has been made out.
Petition is dismissed.
Since the main petition has been decided, the pending Criminal Misc. Application, if any, also stands disposed of.
(AJAY TEWARI) JUDGE January 07, 2012 sunita