Madhya Pradesh High Court
Kishanvihari Sharma @ Satya vs The State Of Madhya Pradesh on 28 October, 2021
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
THE HIGH COURT OF MADHYA PRADESH
W.A.No.469/2021
(Kishan Bihari Sharma alias Satya Vs. State of M.P. and others )
Gwalior, Dated:-28.10.2021
Heard through hybrid hearing.
Shri Awdesh Singh Bhadoriya, learned counsel for appellant.
Shri Ankur Mody, learned Additional Advocate General for
respondent/State.
Shri Prashant Sharma, learned counsel for respondent no.4.
1. This intra-court appeal, filed u/S.2(1) of Madhya Pradesh Uccha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, assails the final order dated 9.4.2021 in W.P.No.2016/2021 passed while exercising writ jurisdiction under Article 226 of the Constitution of India disposing the petition in question by which following reliefs had been made :
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2. Learned counsel for the rival parties are heard on the question of admission as well as final disposal.
3. The petitioner came before the Writ Court with the apprehension that despite not being named in the FIR bearing Crime 2 THE HIGH COURT OF MADHYA PRADESH W.A.No.469/2021 (Kishan Bihari Sharma alias Satya Vs. State of M.P. and others ) No.881/2020, P.S. Porsa, District Morena alleging offences punishable u/S. 8/20 of NDPS Act, the petitioner is being falsely implicated by the police on the confessional statement of the named accused, leading to filing of said petition praying for the aforesaid reliefs.
4. The learned Single Judge while dismissing the petition and declining to go into the merits of the matter held that due to availability of alternative, statutory remedy u/S. 156 (3) or 200 Cr.P.C. and the same not having being availed by the petitioner accused, the petition cannot be heard on merits.
5. The learned counsel for petitioner/appellant does not dispute that the remedy of preferring a private complaint u/S. 200 is not available to an accused which contention need not detain this court as it is trite law that an accused cannot prefer a private complaint u/S. 200 which remedy is available only for the complainant/victim of a crime and not to the accused.
6. As regards the availability of the remedy u/S. 156 (3) Cr.P.C. is concerned, the learned counsel for petitioner has argued at length that this remedy is available to an accused since the provision does not expressly stipulate that a particular person aggrieved can avail the remedy u/S. 156 (3) Cr.P.C. In this background, it is submitted by learned counsel for petitioner that the said remedy is very much 3 THE HIGH COURT OF MADHYA PRADESH W.A.No.469/2021 (Kishan Bihari Sharma alias Satya Vs. State of M.P. and others ) available to an accused moreso when the object behind the provisions of Sec. 156 (3) is to confer power on a Magistrate to inter-alia iron out the creases in the process of investigation which is either delayed or not properly conducted.
7. The question as to whether the remedy u/S. 156 (3) Cr.P.C. can be availed by an accused or not is no more res integra in view of the decisions of Apex Court in Union of India Vs. W.N. Chadha reported in AIR 1993 SC 1082 (para 90 and 92) and in Narendra G. Goel Vs. State of Maharashtra, (2009) 6 SCC 65 (para 11). Relevant extract of W.N. Chadaha (supra) is reproduced below for ready reference and convenience:
"90. Under the scheme of Chapter XII of the Cr.P.C., there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173 (2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused 4 THE HIGH COURT OF MADHYA PRADESH W.A.No.469/2021 (Kishan Bihari Sharma alias Satya Vs. State of M.P. and others ) has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code the Magistrate to give an opportunity of being heard under certain specified circumstances."
Relevant extract of Narendra G. Goel (supra) is reproduced below for ready reference and convenience:
"11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC 740] this Court observed, "11.......There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
8. Pertinently the aforesaid two decisions of the Apex Court in the case of W.N. Chadha (supra) and Narendra G. Goel (supra) were relied upon with approval in a recent decision of Apex Court rendered in Vinubhai Haribhai Malaviya and others Vs. State of Gujarat 5 THE HIGH COURT OF MADHYA PRADESH W.A.No.469/2021 (Kishan Bihari Sharma alias Satya Vs. State of M.P. and others ) and another, reported in (2019) 17 SCC 1. Relevant extract is reproduced below for ready reference and convenience:
"44. Union of India and Anr. v. W.N Chadha (1993) Supp. 4 SCC 260, is a judgment which states that the accused has no right to participate in the investigation till process is issued to him, provided there is strict compliance of the requirements of fair investigation Likewise, the judgments in Smt. Nagawwa v. Veeranna Shivalongappa Konjalgi & Ors. (1976) 3 SCC 736, Prabha Mathur and Anr. v. Pramod Aggarwal & Ors., (2008) 9 SCC 469, Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65 and Dinubhai Bhogabai Solanki Vs. State of Gujarat & others (2014) 4 SCC 626, which state that the accused has no right to be heard at the stage of investigation, has very little to do with the precise question before us. All these judgments are, therefore, distinguishable. Further, Babubhai v. State of Gujarat & Ors. (2010) 12 SCC 254, is a judgment which distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate's power is limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also cannot take us much further. Likewise, Romila Thapar v. Union of India, (2018) 10 SCC 753, held that an accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including asking for a court- monitored investigation. This judgment also is far removed from the question that has been decided by us in the facts of this case."
9. From the aforesaid discussion and the law laid down by the Apex Court as extracted supra it is obvious that remedy u/S. 156 (3) 6 THE HIGH COURT OF MADHYA PRADESH W.A.No.469/2021 (Kishan Bihari Sharma alias Satya Vs. State of M.P. and others ) Cr.P.C. cannot be availed by an accused during pendency of the investigation.
9.1 There is another reason to take the aforesaid view. Investigation is a unilateral process where the police alone conducts the process of investigation after registration of FIR, wherein the accused has no role to play. If an accused is permitted to invoke Sec. 156 (3) Cr.P.C. then such permission would run counter to the very fundamental nature of investigation being unilateral.
10. In view of above discussion, this Court cannot approve the observations made by the learned Single that the remedy u/S 156 (3) and 200 Cr.P.C. are available to the petitioner/accused.
11. However, yet no relief can be afforded to the petitioner as the process of investigation is a unilateral one where the accused is not permitted to participate. The only remedy available to the accused on registration and during pendency of investigation is either to invoke the inherent powers of the Court u/S. 482 Cr.P.C. for quashment of FIR and pending investigation or to take recourse of the bail jurisdiction before the appropriate Court.
12. So far as the prayer of handing over the investigation to an impartial and independent agency is concerned, the same does not impress this Court as the offence or the complexity of the factual scenario involved and the nature of offence, are not such which may 7 THE HIGH COURT OF MADHYA PRADESH W.A.No.469/2021 (Kishan Bihari Sharma alias Satya Vs. State of M.P. and others ) compel this Court to grant this relief.
13. Learned counsel for the petitioner has relied upon the decisions in the case of Babubhai Vs. State of Gujarat and others, reported in (2010) 12 SCC 254 (para 25), Selvi Vs. State of Karnataka, reported in (2010) 7 SCC 263 (para 110) and Sakiri Vasu Vs. State of U.P., reported in (2008) 2 SCC 409 (para 27). All these three judgments of the Apex Court turn on different factual scenario which are at variance to the facts attending the instant case, and therefore, are of no avail to the petitioner.
14. In the considered opinion of this Court and in the backdrop of the above discussion, this Court declines interference.
15. In view of the above discussion, there is no substance in the present appeal which stands dismissed.
E-copy/Certified copy as per rules/directions.
(Sheel Nagu) (Deepak Kumar Agarwal )
Judge Judge
Pawar*
ASHISH PAWAR
2021.10.29
19:11:13 +05'30'