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2011 DIGILAW 2812 (RAJ)

Harkesh Meena v. State of Rajasthan

2011-12-22

MAHESH CHANDRA SHARMA

body2011
JUDGMENT 1. - S.B. Criminal Misc. Application No. 452 of 2011 has been filed in S.B. Criminal Misc. Petition No. 1667/2009, Harkesh Meena v. The State of Rajasthan and another by the Public Prosecutor for the clarification of the term "NO COERCIVE STEP SHALL BE TAKEN AGAINST THE PETITIONER, AS HAS ALREADY BEEN DIRECTED ON 4.11.2009." while passing final order dated 7.12.2011 by this court. 2. S.B. Criminal Misc. Application No. 302 of 2011 has been filed in S.B. Criminal Misc. Petition No. 19/2010, Udai Singh and anr. v. The State of Rajasthan and another by the complainant applicant for the clarification of the term "NO COERCIVE STEP SHALL BE TAKEN AGAINST THE PETITIONER, AS HAS ALREADY BEEN DIRECTED ON 11.1.2010." while passing final order dated 16.9.2011 by this court. 3. That while passing final order in S.B.Cr. Misc. Petition No. 1667 of 2009 on 7.12.2011 this Court observed as under : "I do not find any merit in this petition and same is hereby dismissed. 4. The leaned Public Prosecutor submits that dismissal of misc. petition means cognizable offences u/s 332 and 353 Indian Penal Code u/s 145 Railway Act were maintained and interference in investigation was totally refused and concerning S.H.O. was to proceed further. However, investigation in this case was already complete and investigating agency found proved offences u/s 332 and 353 IPC and u/s 145 Railway Act against him and charge sheet was pending to be submitted against him. Earlier even warrant-of-arrest was issued against him on 15.09.2009. The learned Public Prosecutor submits that the interim bail application u/s 438 Criminal Procedure Code in anticipatory bail application No.1510/2009 of accused Harkesh Meena was rejected on 17.03.2009 with the observation "It is not reflected that the accusation against the petitioner is totally false and baseless hence, in the instant case, the petitioner is not entitled to get the anticipatory bail." 5. The Public Prosecutor states that the accused petitioner is habitual offender as besides present FIR No.9/2009 dated 10.01.2009 u/s 332, 353 IPC and u/s 145 Railways Act two more FIR's were lodged against him which are as under : FIR No.436/09 dated 22.09.2009 u/s 420, 467, 468, 471, 120B, 504 IPC at P.S. Mansarover, Jaipur & Another FIR No. 718/08 dated 26.08.2008 u/s 323, 341, 427 IPC was lodged at Malviya Nagar, Jaipur in which charge sheet No.296/2008 was also submitted in court concerned. 6. 6. The Public Prosecutor further submits that while passing final order on 7.12.2011 and dismissing the Criminal Misc. Petition having no merit this court maintained the interim order dated 4.11.2009 with direction "No coercive step shall be taken against the petitioner." 7. The learned Public Prosecutor submits that when Criminal Misc. Petition has been dismissed it is crystal clear that this Court has given its final verdict in not to interfere in the investigation. Obviously on completion of investigation the progress report is also to be submitted in the concerned Court. In pursuance to procedure and law as per Section 170 Criminal Procedure Code "If upon an investigation under this chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a magistrate empowered to take cognizance of the offence upon a police report and to try the accused..." 8. The Public Prosecutor further submits that the investigation has already been completed only charge sheet u/s 173 Criminal Procedure Code is to be submitted and compliance u/s 170 Criminal Procedure Code is essential and accordingly the accused petitioner is to be arrested. For the same the Public Prosecutor states that the concerned S.H.O. Before arresting the accused petitioners desires some clarification of the words "No coercive action to be taken" as per second part of the order dated 7.12.2011 before executing arrest of the accused Harkesh Meena. 9. The learned Public Prosecutor submits that the coordinate Bench of this court in S.B. Criminal Misc. Petition No.2846/2009 has opinioned "Effecting arrest of an accused in any cognizable offence to my mind does not amount to coercive step." 10. The learned Public Prosecutor placed reliance on full bench judgement comprising seven judges in 1989 Cri. L.J. 1013, Ram Lal Yadav and others, Applicants v. State of U.P. and others wherein it has been held that The High Court has also no inherent power under section 482 Criminal Procedure Code to stay the arrest of an accused during investigation. He has placed reliance on 1993 CRI. L.J. 2083 (Allahabad High Court), Ashok Kumar Singh and others, Petitioners v. The State of U.P. and others . 11. Mr G. S. Gautam, counsel appearing for the applicant Shyam Singh in S.B.Cr. Misc. Application No. 302 of 2011 reiterates the arguments raised by the learned Public Prosecutor. He has placed reliance on 1993 CRI. L.J. 2083 (Allahabad High Court), Ashok Kumar Singh and others, Petitioners v. The State of U.P. and others . 11. Mr G. S. Gautam, counsel appearing for the applicant Shyam Singh in S.B.Cr. Misc. Application No. 302 of 2011 reiterates the arguments raised by the learned Public Prosecutor. He submits that the order passed by this court may also be clarified in his case. 12. I have heard the learned Public Prosecutor and the counsel for the applicant complainant in S.B.Cr. Misc. Application No. 302 of 2011 Mr. G.S.Gautam. 13. The Order dated 29th January 2010 passed in S.B. Criminal Misc. Petition No. 2836/2009, Ram Swaroop & Ors. v. State of Rajasthan & Another reads as under : ....... the Investigating Officer has been facing difficulty to effect the arrest of the accused persons in this case. He prays the Court to clarify this term 'coercive step'. ....... However, what do I understand, making arrest of an accused by police is a part of investigation conducted in any cognizable offence. The police has got powers to effect arrest of an accused, concerned in any cognizable offence, if any credible information and sufficient evidence is available against him. Effecting arrest of an accused in any cognizable offence, to my mind, does not amount to 'coercive step'. 14. Similarly Allahabad High court in its full bench judgement comprising seven judges has also hold The High Court has also no inherent power under section 482 Criminal Procedure Code to stay the arrest of an accused during investigation. In the judgment, the Allahabad High Court held as under : Head Note : Criminal Procedure Code (1973), section 482 and section 41(1)(a) - Power of Police to Investigate crime - Cannot be interfered with under section 482 - High Court has no inherent power to interfere with arrest of a person even if it is mala fide during investigation. Para No. 23 Page No.1021 Considering the case of Puttan Singh v. State of U.P., 1987 All LJ 599 it was held (at page No.603) ................ Para No. 23 Page No.1021 Considering the case of Puttan Singh v. State of U.P., 1987 All LJ 599 it was held (at page No.603) ................ This court therefore has no jurisdiction to direct a police officer not to arrest the applicant during the pendency of the investigation of the case registered on the basis of the First Information Report lodged by Sheo Nath Singh against the applicant and others which discloses the commission of a cognizable offence in the exercise of its inherent powers under section 482 Criminal Procedure Code Para 24 Page 1021 In our opinion the case of Puttan Singh v. State of U.P., 1987 All WC 404 : 1987 All LJ 599 was correctly decided. (i) ....... (ii) Our answer to the second question referred to us is that the High Court has no inherent power under section 482 Criminal Procedure Code to interfere with the investigation by the police. The High Court has also no inherent power under section 482 Criminal Procedure Code to stay the arrest of an accused during investigation. The decision by the Full Bench in the case of Prashant Gaur v. State of U.P., 1988 All WC 828 (supra) does not lay down correct law and is overruled. (iii) ....... 15. Further the Allahabad High Court in Ashok Kumar Singh and others, Petitioners v. The State of U.P. and others , held as under: Head Note (A) : Criminal Procedure Code (1974), section 482 Power of Court Stay of arrest of accused during investigation Cannot be ordered under section 482. Above full bench case has been relied upon in this case. Para 5 P.No.2084 - A reference may be made to the case of Ramlal Yadav v. State of U.P., 1990 All LJ 47 : 1989 Cri LJ 1013 . The Full Bench of seven Judges of this Court has ruled in this case that during investigation the Court has no power under section 482, Criminal Procedure Code to stay the arrest of an accused. ....... 16. In view of the judgments of the Allahabad High Court and the judgment of the Coordinate Bench, the orders passed in S.B. Criminal Misc. Petition No. 1667/2009 Harkesh Meena v. The State of Rajasthan in the final order dated 7.12.2011 in relation interim order dated 4.11.2009 and in S.B. Criminal Misc. Petition No. 19/2010 Udai Singh and anr. ....... 16. In view of the judgments of the Allahabad High Court and the judgment of the Coordinate Bench, the orders passed in S.B. Criminal Misc. Petition No. 1667/2009 Harkesh Meena v. The State of Rajasthan in the final order dated 7.12.2011 in relation interim order dated 4.11.2009 and in S.B. Criminal Misc. Petition No. 19/2010 Udai Singh and anr. v. The State of Rajasthan and another in the final order dated 16.9.2011 in relation to interim order dated 11.1.2010, it is clarified that "NO COERCIVE STEP SHALL BE TAKEN AGAINST THE PETITIONER does not mean that Effecting arrest of an accused in any cognizable offence does not amount to coercive step. 17. The final orders in both the misc. petitions are clarified accordingly and it is further clarified that Effecting arrest of an accused in any cognizable offence does not amount to coercive step. The investigating officer is free to arrest the accused, submit the charge etc. but he is not permitted to do manhandling and abusing to the accused. 18. Ordered accordingly. 19. In view of the above the misc. application are disposed accordingly with the above clarification.Application Disposed Of With Above Clarification - Investigating Officer Exhorted Not To Abuse Or Manhandle Accused. *******