Neeraj Kumar vs State Of H.P. & Others on 19 December, 2019

[Cites 7, Cited by 24]

Himachal Pradesh High Court

Neeraj Kumar vs State Of H.P. & Others on 19 December, 2019

For the Appellant/Petitioner: Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Gupta, Advocate For the Respondents/State:Mr. Hemanshu Misra, Addl. A.Gs. with Mr. Vikrant Chandel, Dy. A.Gs, and, Mr. Gaurav Sharma, Dy. A.Gs. For ::: Downloaded on - 21/12/2019 20:25:54 :::HCHP 2 respondents No.1 in Cr. Appeal No. 314 of 2018, and, for respondents No.1 and 2 in Cr.MMO No. 311 of 2018.

For private respondents:Mr. H.S. Rana, Advocate, for respondents No.2 to 7 in Cr.

Appeal no. 314 of 2019, and, for respondents No.4 to 9 in Cr.MMO No. 311 of 2018, and, Mr. Rakesh Chauhan, Advocate, for respondent No.3 in Cr.MMO No. 311 of 2018.

Sureshwar Thakur, Judge.

Cr. Appeal bearing No. 314 of 2019, stands directed, by, the appellant/petitioner herein, against, the verdict, recorded, on 19.06.2018, by the Gram Panchayat, Bagheri, (i) wherethrough, it pronounced, an order of acquittal, vis-a-vis, respondent No.2, qua, the offences, as, embodied in Sections 323, 504, and, under Section 506, of, the, IPC, besides, thereto, the, aggrieved Neeraj Kumar, has, also constituted, a, petition, under, Section 482, of, the, Cr.P.C., (ii) wherein, he, apart from, the, afore prayer made, in, Cr.

Appeal No. 314 of 2019, has also thereafter, made, a, further prayer, hence, for re-investigations being ordered, to be, conducted, by, an, Investigating Agency, other than, the, Investigating Officer ::: Downloaded on - 21/12/2019 20:25:54 :::HCHP 3 concerned, (iii) as, the Investigating Officer concerned, who instituted, a, Kalendera, before, the, Gram Panchayat concerned, rather holding tainted, .

and, slanted investigations, into the offences committed, by, the accused, (iv) factum whereof, is, averred to become comprised, in, despite, the, offences alleged, against, the, accused concerned, becoming embodied within, the, ambit, of, Sections 323, 504, 506, of, the IPC, read, with, Section 147, and, 149 of the IPC, (v) and, whereupon, they fell outside, the, triable jurisdiction of the Gram Panchayat concerned, and, also became unamenable, for, becoming, tried by the Gram Panchnayat concerned, his, rather for bestowing, upon, the accused concerned, the purported advantages, of, theirs becoming tried, by the Gram Panchayat concerned, than, by the Judicial Magistrate concerned, his obviously deleting, in the Kalendera, the afore penal provisions, conspicuously for ensuring the accused, avoiding theirs becoming tried, by, the learned Magistrate concerned.

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2. Since, both the Cr. Appeal no. 314 of 2019, and, Cr.MMO No. 311 of 2018, are directed, against, a, common verdict, as, pronounced, by, the Gram .

Panchayat concerned, and, thereupon, both, are, amenable, for, a, common verdict, becoming recorded thereon.

3. Without going into the merits, of, the afore contentions addressed before this Court, by the learned counsel, appearing for the aggrieved, and, as appertain to the illegality, of, assumption, of, jurisdiction, by, the Gram Panchayat concerned, (a) as, become sparked, from, the afore tainted investigations, becoming, conducted, by, the Investigating Officer concerned, into, the offences allegedly committed, by, the accused concerned, (b) this court, is, of, a, firm view, that, the appropriate recourseable remedy rather available to the aggrieved, hence, becoming, comprised, in, his assailing the orders made by the Gram Panchayat concerned, through, his constituting an appeal thereagainst, before, the learned Judicial Magistrate concerned.

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4. Furthermore, the petition cast, under, Section 482 of the Cr.P.C., became instituted subsequent, to, the impugned order, becoming made, .

by, the Gram Panchayat concerned, (a) and, also obviously when anypurported illegal assumption, of, jurisdiction, by, the Panchayat concerned, rather emanating, from, the, Investigating Officer concerned, instituting therebefore, a Kalendra, (b) hence, constituting therein, offences contended, to be, not, triable, by, the Gram Panchayat concerned, given, the, Investigating Officer concerned, through, his conducting tainted, and, skewed investigations, into, the relevant offences, his, deleting certain penal provisions, which otherwise, may have bestowed, jurisdiction, upon, the, Judicial Magistrate concerned,

(c) rather, hence, his, merely, to, ensure, the, conferment, of, untenable jurisdiction, upon, the Gram Panchayat concerned, his, making/presenting, the, Kalendra, rather therebefore. Significantly, the afore conundrum, necessarily, was, raiseable or rearable, prior to the assumption, of, jurisdiction, by, the Gram Panchayat concerned, (d) thereupon, prima facie, at ::: Downloaded on - 21/12/2019 20:25:54 :::HCHP 6 this stage, the Kalendra, presented before the Gram Panchayat concerned, by the Investigating Officer concerned, merges, into, the, impugned verdict, .

recorded by the Gram Panchayat concerned, (e) and, at this stage, this Court, is, constrained not to order for re-investigations, being conducted, into, the apposite offences, by, an, investigating officer, other than, the Investigating officer concerned, (f) as, any order, for, apt re-investigations, becoming conducted, is, amenable, for, becoming pronounced, only during, the, pendency, of, investigations, becoming conducted, by, the Investigating Officer concerned, and, also are amenable, for, their valid makings, by, the Judicial Magistrate concerned, or, upon, the, aggrieved, rearing, a, petition under Section 482, of, the Cr.P.C., before this Court. Conspicuously, the lack, of, makings, of, the, afore recoursing(s), during, the pendency of the investigations, as, became conducted, by, the Investigating Officer concerned, hence, renders, disabled, the, aggrieved, to, now recourse, the, mandate, of, Section 482 of the Cr.P.C., after, the purported illegal assumption, of, jurisdiction, ::: Downloaded on - 21/12/2019 20:25:54 :::HCHP 7 and, also after termination thereof, rather by, the Gram Panchayat concerned, intos, the, offences, qua wherewith, the, Investigating Officer, instituted, a, .

Kalendra, before the Gram Panchayat concerned, thereupon, at this stage this Court is not constrained, to allow, the afore relief, vis-a-vis, the aggrieved.

5. Be that as it may, as aforestated, the, only available apt remedy, vis-a-vis, aggrieved, is, comprised, in, his assailing, the, impugned verdict, recorded, by, the Gram Panchayat concerned, hence, before the learned Judicial magistrate concerned, (a) and, also when, upon, the afore remedy becoming recoursed, thereupon, the aggrieved, may, upon his convincing, the, learned Judicial Magistrate concerned, vis-a-vis, the afore illegality, permeating, the, verdict recorded, by, the Gram Panchayat concerned, and, also further, his, addressing before him, a, submission, and, appertaining, to, the illegal assumption, of, jurisdiction, by, the Gram Panchayat concerned, and, as became aroused, from, the, afore tainted investigations, becoming, conducted, by, the Investigating officer concerned, may also, hence, ::: Downloaded on - 21/12/2019 20:25:54 :::HCHP 8 constrain the learned Judicial Magistrate concerned, to, after, setting aside, the, impugned verdict, to, order, for, within, the, ambit, of, subsection (8), of, .

Section 173, of, the Cr.P.C., for, hence, further investigations, being conducted, by, a, independent agency or by, an, Investigating Officer, other, than, the Investigating Officer, who, earlier conducted investigations, into, the alleged offences, (b) thereupon, this r Court, reserves, all, the, afore opportunities, to, the aggrieved, for, theirs becoming espoused, before the learned Judicial Magistrate concerned.

6. For the foregoing reasons, there is no merit in the afore criminal appeal, as also, in the petition, and, in sequel, both the criminal appeal, and, the petition, are, dismissed, yet, with the afore observations. All pending applications, also stand, disposed of. Records be sent back to the concerned quarters.

(Sureshwar Thakur) 19 th December, 2019. Judge.

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Himachal Pradesh High Court