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2012 DIGILAW 1006 (HP)

Om Parkash v. State of Himachal Pradesh

2012-12-19

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, J This petition under Section 482 Cr.P.C. has been filed for quashing proceeding in Cr.MA No.299-1 of 2009 pending in the Court of learned Judicial Magistrate Ist Class, Court No.II, Sunder Nagar. 2. It has been stated that Madan Dhiman, SHO, Police Station, BSL Colony, Sunder Nagar vide diary No.24(A) dated 29.6.2009 has alleged that he alongwith other officials was on patrolling duty at about 8.45 p.m. on 29.6.2009 on S-O Chowk Sunder Nagar, he allegedly found Tempo No.HP32A 5777 had obstructed the road leading to market. He was challaned under Section 177 of the Motor Vehicles Act by Head Constable Rajinder Kumar. In the meantime, a person in Car No.HP 32-1947 came and stopped the car and said why the police were troubling the people. The said person alleged that he had contacts with S.P. and DIG and he was conversant with IPC and Cr.P.C. He started arguing. He was advised that it was the duty of the police to maintain law and order. He was further told by the SHO that he was discharging public duty. The said person told SHO that it appeared the SHO was new man in the area, Rajinder Kumar knew him well. He threatened SHO to get him transferrd. It came out that the said person was Om Parkash. He obstructed SHO and his subordinates to perform the duty. He started his car dangerously and fled away from the spot by the time he could be stopped. 3. It has been stated that the petitioner was challaned, subsequently, challan was sent for further proceeding before learned Judicial Magistrate Ist Class, Court No.II, Sunder Nagar. The petitioner is thus facing trial in Cr.M.A. No.299-1 of 2009. The notice of accusation has been put to the petitioner under Section 186 IPC. Madan Dhiman, SHO is complainant and author of the incident. He conducted the investigation and very likely will appear in evidence during trial. The investigation has vitiated. The submission has been made for quashing of the proceedings. 4. Heard. The learned counsel for the petitioner has submitted that Madan Dhiman is the complainant, investigating officer and very likely will be a witness in the case. The learned counsel for the petitioner has relied Megha Singh vs. State of Haryana, AIR 1995 SC 2339 and State of Karnataka vs. Sheshadri Shetty 2005, Cr.L.J 377 for quashing the proceedings. 4. Heard. The learned counsel for the petitioner has submitted that Madan Dhiman is the complainant, investigating officer and very likely will be a witness in the case. The learned counsel for the petitioner has relied Megha Singh vs. State of Haryana, AIR 1995 SC 2339 and State of Karnataka vs. Sheshadri Shetty 2005, Cr.L.J 377 for quashing the proceedings. The learned counsel for petitioner has submitted that it is not expected that Madan Dhiman will not support his own case. The fairness requires investigation by independent person and not by a complainant, who always has interest in the complaint. 5. The learned Addl. Advocate General has submitted that SHO was on patrolling duty, he found violation of law and thereupon the petitioner was challenged. It has been submitted that in the facts and circumstances of the case there was nothing wrong in proceeding against petitioner on the basis of report of Madan Dhiman, SHO. 6. The petitioner has prayed for quashing of the case pending against him the trial Court. In State of Karnataka vs. Sheshadri Shetty and others after noticing Megha Singh vs. State of Haryana, it has been held that where the Investigating Officer is complainant, he is offending the principle of impartiality as far as the quality of the investigation is concerned. In that case it was held that Megha Singh’s case would virtually render the investigation as tainted. 7. In State vs. V. Jayapaul (2004) 5 SCC 223 , the Supreme Court has noticed Megha Singh and has held as follows:- “4. We have no hesitation in holding that the approach of the High Court is erroneous and its conclusion legally unsustainable. There is nothing in the provisions of the Criminal Procedure Code which precluded the appellant (Inspector of Police, Vigilance) from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. The scheme of Sections 154, 156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in State of U.R v. Bhagwant Kishore Joshi: (AIR p. 223, para 8) "Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorises such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said provisions that an officer in charge of a police station can start investigation either on information or otherwise." The Supreme Court has further held as follows:- “6. Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who "lodged" the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.” 8. In the present case the grievance of the petitioner is that Madan Dhiman is the complainant and Investigating Officer and therefore, investigation conducted by him has vitiated, but the Supreme Court in State vs. V. Jayapaul has held that there is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case. In the light of law laid down by the Supreme Court in State vs. V. Jayapaul, there is no merit in the petition and the same is dismissed. Pending application if any, is also disposed of in view of the disposal of the main petition.