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2018 DIGILAW 1697 (HP)

Sunit Kumar v. State of H. P.

2018-09-19

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Heard. 2. The petitioner is accused in FIR No. 73 of 2017 registered under Section 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act against him and his co-accused Vishal on 26.4.2017 in Police Station Palampur, District Kangra, H.P. This petition is filed for a direction to the Investigating Agency to conduct further investigation on the grounds inter alia that he was not apprehended in the manner as claimed in the report under Section 173 Cr.P.C. filed against him and rather picked up from “Sangrai Auto Service Station”, Palampur where he had taken his vehicle No. HP 37E-4437, Alto 800 for service on 25.4.2017 at 15:17:14 hours and prior to that he had gone to Chandigarh on 23.4.2017. The documents i.e. receipts issued by Toll Plaza (Annexure P-2) and Job Card by Sangrai Auto Service Station (Annexure P-3) have been pressed in service. The mileage of the vehicle when brought to the service station and when released to the petitioner has also been pressed in service to allege that on 25.4.2017 he was not driving the vehicle from Baijnath side to Palampur and rather brought the vehicle to service station at a stage when its mileage was 32334 kms. The vehicle when released to the accused-petitioner through his Special Power of Attorney, its mileage was 32343 kms. He intends to show that had the vehicle been driven by him on that day from Baijnath side, its mileage should have not been like the one as in the release document Annexure P-3 (Colly.). 3. As per further case of the accused-petitioner, prior to the registration of FIR No. 73 of 2017 against him, one Sanki allegedly son of a businessman of Palampur town and an influential person in the area on 29.3.2017 had administered beatings to him and also his friend Vijay. Therefore, at the instance of Vijay Kumar, FIR No. 56 of 2017 (Annexure P-1) under Sections 323, 341 and 506 read with Section 34 IPC was registered against said Sanki and his companions in PS Palampur. The apprehension of the accused-petitioner is that he had been booked by the police of PS Palampur for extraneous consideration as a counter blast to FIR (Annexure P-1) registered at the instance of his friend Vijay Kumar against Sanki and his companions. 4. The apprehension of the accused-petitioner is that he had been booked by the police of PS Palampur for extraneous consideration as a counter blast to FIR (Annexure P-1) registered at the instance of his friend Vijay Kumar against Sanki and his companions. 4. In reply, the response of respondent-State is that on 25.4.2017, the police of PS Palampur had laid a Naka for traffic checking and also gathering information qua illicit trafficking of narcotic and psychotropic substances at Chadhiar Chowk, Palampur. The Station House Officer of the Police Station had received information that the vehicle bearing registration No. HP 37E-4437 (Alto 800) was coming from Baijnath side to Palampur and its driver carrying charas in the said Car. Another vehicle bearing registration No. HP 37 A 2196 (Trax) came there and it was signaled by the police to stop. That vehicle was being driven by Shashi Kumar and occupied by its owner Sh. Gian Chand. Simultaneously, the offending vehicle HP 37-E-4437 being driven by the accused-petitioner also arrived at the place of Naka. On seeing the police party, the driver (accused-petitioner) felt nervous and perplexed. The police enquired his name and other antecedents which he disclosed and claimed that he is owner of the said vehicle. On completion of the procedure prescribed under the ND & PS Act, the search of the vehicle was conducted in the presence of independent witnesses and charas weighing 1 kg 43 grams kept inside the mudguard of the right side front tyre was recovered. The same was seized and taken into possession and on compliance of other codal formalities, rukka sent to Police Station Palampur on the basis whereof FIR No. 73 of 2017 was registered against the accused-petitioner and his co-accused on 26.4.2017. It is, therefore, denied that he along with the vehicle was picked up from Sangrai Auto Service Station, Palampur and booked falsely in this case. 5. Mr. Abhimanyu Rathore, Advocate assisted by Ms. Poonam Gehlot, Advocate, has strenuously contended that in the given facts and circumstances, the present is a fit case where in view of the facts disclosed in this petition a direction is required to be issued to the Investigating Agency to conduct further investigation in this matter. 5. Mr. Abhimanyu Rathore, Advocate assisted by Ms. Poonam Gehlot, Advocate, has strenuously contended that in the given facts and circumstances, the present is a fit case where in view of the facts disclosed in this petition a direction is required to be issued to the Investigating Agency to conduct further investigation in this matter. In order to buttress the arguments so addressed, reliance has been placed on the judgment of the Apex Court in Vinay Tyagi vs. Irshad Ali alias Deepak & Ors., (2013) 5 SCC 762 and Baljinder Kaur vs. State of Punjab (2015) 2 SCC 629 . 6. True it is that fair investigation and trial is a Constitutional right of an accused booked by the police for the commission of an offence, however, in the nature of the relief sought cannot be granted in a petition under Section 482 Cr.P.C. and that too on the basis of the material placed on record to substantiate the plea so raised in the petition. As a matter of fact, in the case in hand, the investigation is complete. Report under Section 173(2) Cr.P.C. stands filed and trial is in progress in the Court of learned Special Judge i.e. Addl. Sessions Judge (III), Kangra at Dharamshala. The trial according to Mr. Rathore, learned counsel was fixed today for recording prosecution evidence. As a matter of fact, had there been necessity of further investigation required in the matter, the remedy available to the accused-petitioner was to have resorted to the provisions contained under Section 173(8) Cr.P.C. ant not the present petition. Admittedly, such remedy has not been availed at an appropriate stage. 7. As per the ratio of the judgment of the Apex court in Vinay Tyagi’s case (supra), the Magistrate before whom the report/charge sheet under Section 173(2) Cr.P.C. filed may suo motu exercise the jurisdiction to direct further investigation if from the police report, so filed, satisfied that the same is necessary. It has also been held in this judgment that the Magistrate seized of the matter should exercise such power sparingly only in exceptional cases, where investigation already conducted was not in proper direction. Therefore, had the accused-petitioner, been aggrieved, would have resorted to the remedy available to him at the stage when the police had filed the report/charge sheet against him in the trial Court. Therefore, had the accused-petitioner, been aggrieved, would have resorted to the remedy available to him at the stage when the police had filed the report/charge sheet against him in the trial Court. Although the prayer in the petition is not to direct the investigating agency to conduct fresh/de novo investigation/re-investigation and rather for a direction to conduct further investigation, yet as per further ratio of the judgment in Vinay Tyagi’s case cited supra, in a petition under Section 482 Cr.P.C., the High Court may order fresh/de novo investigation/re-investigation in the exercise of extra-ordinary inherent jurisdiction by a speaking order, dealing specifically qua the fate of the investigation already conducted and the final report filed by the investigating agency before the Magistrate. There is also a caution that such jurisdiction should be exercised in exceptional cases where investigation already conducted is unfair, tainted, malaifide and in violation of settled principles of the investigative canons which pricks the judicial conscience of Court. Additionally, reasons as to why previous investigation is incapable of being acted upon should also be recorded. Anyhow, since, there is no prayer for fresh/de novo investigation/re-investigation, therefore, this part of the ratio of the judgment (supra) is not applicable in the case in hand and further ratio of this judgment, as noticed supra, rather substantiates the view of the matter that had the accused-petitioner been aggrieved by the insufficiency of the investigation conducted should have resorted to the remedy available to him at an appropriate stage i.e. when the report/charge sheet under Section 173(2) Cr.P.C. was filed against him in the court. 8. Now, if coming to the law laid down by the Apex Court in Baljinder Kaur’s case cited supra, there is no denying to the legal proposition that investigation plays an important role in the process of administration of criminal justice because the same is foundation stone on which the entire prosecution case rests. In the case in hand, nothing tangible suggesting that the investigation has not been conducted in its right direction and rather for extraneous consideration or influenced by Sainky, an accused in FIR Annexure P-1, registered at the instance of Vijay Kumar, the another victim of occurrence having taken place on 29.3.2017, has come on record nor it can be believed at this stage that the police framed the accused-petitioner falsely. 9. 9. In a case of this nature where an accused is held guilty, there is provision of minimum sentence of 10 years imprisonment and Rs. 1,00,000/- as fine and as such even if the father of aforesaid Sainky is a businessman or influential person, also cannot be said to be the reason of framing the accused-petitioner in this case falsely. Though, to elaborate the documents annexed to this petition at this stage may cause prejudice to the defence of the accused-petitioner, however, suffice would it to say that such material is also not sufficient to persuade this Court to take a view of the matter that further investigation in the matter is required to be conducted on the lines as suggested by the accused-petitioner in this petition. 10. Otherwise also, the practice to conduct investigation in a particular manner and fashion should not be encouraged as in that event each and every offender will come with similar plea and in that event there will not only be the possibility of multiplicity of litigation but also the criminal administration justice system to be paralysed and the proceedings stalled. On the other hand, when the trial is in progress, the accused-petitioner is at liberty to raise any plea in his defence, including the pleadings in this petition. The machinery provided under the Code of Criminal Procedure and also the ND & PS Act also provide a remedy to an offender if ultimately found to be framed by the police falsely on some extraneous consideration. 11. For all the reasons hereinabove, there is no merit in this petition and the same is accordingly dismissed.