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Madhya Pradesh High Court · body

2018 DIGILAW 670 (MP)

Jagdish v. State of M. P.

2018-08-01

G.S.AHLUWALIA

body2018
JUDGMENT : 1. Heard on the question of admission. 2. This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the judgment and sentence dated 11-10-2017 passed by Additional Sessions Judge, Budnagar, Distt. Ujjain, in Criminal Appeal No.15/2017, thereby affirming the judgment and sentence dated 24-12-2016 passed by J.M.F.C., Budnagar, Distt. Ujjain in Criminal Case No.158/2010, by which the applicant has been convicted under Section 25(1-B)(a) of Arms Act and has been sentenced to undergo the rigorous imprisonment of 1 year and a fine of Rs.500/- with default imprisonment. 3. The necessary facts for the disposal of the present revision in short are that on 27-1-2010, Sub-Inspector K.N. Sharma, who was posted in Police Station Ingoria, received an information from an informant that the applicant is in illegal possession of a pistol. The police party reached bus stand of village Chikali and with the help of the police force, the applicant was searched and he was found in possession of a pistol and two live cartridges. The applicant could not produce the license to hold the firearm and accordingly, he was arrested and crime no.20/2010 was registered against him for offence under Section 25 of Arms Act. The spot map was prepared. The seized pistol and cartridges were sent for examination. After obtaining the sanction for prosecution under the Arms Act, the police filed the charge sheet against the applicant for offence under Sections 25 and 27 of Arms Act. 4. The Trial Court framed charge under Sections 25(1-B)(a) and 27 of Arms Act. The applicant abjured his guilt and pleaded not guilty. 5. The prosecution in order to prove its case, examined Dinesh (P.W.1), Sanjay (P.W.2), Lalit Vyas (P.W.3), Shivnarayan Malviya (P.W.4) and Kailash Narayan Sharma (P.W.5). The appellant did not examine any witness in his defence. 6. The Trial Court by judgment and sentence dated 24-12- 2016 passed in Criminal Case No.158/2010 convicted the applicant for offence under Section 25(1-B)(a) of Arms Act and sentenced him to undergo the rigorous imprisonment of 1 year and a fine of Rs.500/- with default imprisonment. 7. Being aggrieved by the judgment and sentence passed by the Trial Court, the applicant filed an appeal, which too has been dismissed by the Appellate Court, by judgment and sentence dated 11-10-2017 passed in Criminal Appeal No.15/2017. 8. 7. Being aggrieved by the judgment and sentence passed by the Trial Court, the applicant filed an appeal, which too has been dismissed by the Appellate Court, by judgment and sentence dated 11-10-2017 passed in Criminal Appeal No.15/2017. 8. Challenging the judgment and sentence passed by the Courts below, it is submitted by the Counsel for the applicant that in the present case, the complainant as well as the investigating officer is one and the same person and accordingly the entire investigation is vitiated. It is further submitted that the independent seizure witnesses have not supported the prosecution case and it has not been proved that the report of the armorer is in respect of the same firearm which was seized from the possession of the applicant. 9. Per contra, it is submitted by the Counsel for the State that both the Courts below after appreciating the evidence, which has come on record, have given a concurrent findings of facts and the Counsel for the applicant could not point out any perversity in the judgment and sentence passed by the Courts below. 10. Heard the learned Counsel for the parties. 11. So far as the first contention of the Counsel for the applicant that the entire investigation is vitiated, because the complainant as well as the investigating officer is one and the same person, is concerned, the same is misconceived and is hereby rejected. 12. In support of his contention that the complainant and the Investigating Officer should not be the same person, the counsel for the applicant has relied upon the judgment of this Court in the case of Raju Dubey vs. State of MP, reported in 1998 (1) JLJ 236 which read as under:- "5. xxxxxxxxxx In a recent decision the Apex Court has held that the arresting officer should not be Investigating Officer himself xxxxxxxxx." 13. The Supreme Court in the case of Megha Singh vs. State of Haryana, reported in AIR 1995 SC 2339 has held as under:- ''4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." 14. However, this judgment was considered by the Supreme Court in the case of State Represented By Inspector Of Police, Vigilance and Anti Corruption, Tirchirapalli, Tamil Nadu vs. V. Jayapaul, reported in AIR 2004 SC 2684 and it was held as under:- "9. Now, we may turn our attention to the case of Megha Singh v. State of Haryana on which reliance was placed by the High Court. 10. In Megha Singh's case, PW3, the Head Constable, found a country-made pistol and live cartridges on search of the person of the accused. Then, he seized the articles, prepared a recovery memo and a 'rukka' on the basis of which FIR was recorded by the S.I. of police. However, P.W.3-the Head Constable himself, for reasons unexplained, proceeded to investigate and record the statements of witnesses under Section 161 Cr.P.C. The substratum of the prosecution case was sought to be proved by the Head Constable. In the appeal against conviction under Section 25 of the Arms Act and Section 6(1) of the TADA Act, this Court found that the evidence of PWs 2 & 3 was discrepant and unreliable and in the absence of independent corroboration, the prosecution case cannot be believed. Towards the end, the Court noted "another disturbing feature in the case". In the appeal against conviction under Section 25 of the Arms Act and Section 6(1) of the TADA Act, this Court found that the evidence of PWs 2 & 3 was discrepant and unreliable and in the absence of independent corroboration, the prosecution case cannot be believed. Towards the end, the Court noted "another disturbing feature in the case". The Court then observed: "PW 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation". 11. The conviction was set aside by this Court for the above reasons. 12. At first blush, the observations quoted above might convey the impression that the Court laid down a proposition that a Police Officer who in the course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further Investigation if the FIR was recorded on the basis of the information furnished by him. On closer analysis of the decision, we do not think that any such broad proposition was laid down in that case. While appreciating the evidence of the main witness, i.e., the Head Constable (PW3), this Court referred to this additional factor--namely, the Head Constable turning out to be the investigator. In fact, there was no apparent reason why the Head Constable proceeded to investigate the case bypassing the Sub-Inspector who recorded the FIR. The fact situation in the present case is entirely different. The appellant--Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before he did so, he did not have personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was that of investigator-pure and simple. That is the obvious distinction in this case. The appellant--Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before he did so, he did not have personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was that of investigator-pure and simple. That is the obvious distinction in this case. That apart, the question of testing the veracity of the evidence of any witness, as was done in Megha Singh's case, does not arise in the instant case as the trial is yet to take place. The High Court has quashed the proceedings even before the trial commenced." 15. This Court in the case of Anil @ Bhura Vs. State of M.P., by judgment dated 19-7-2017 passed in Cr.A. No. 533 of 2017 (Gwalior Bench) has held as under : Thus, it is clear that unless and until the defence points out any bias on the part of the Investigating Officer, the prosecution case cannot be thrown merely on the ground that the complainant as well as the Investigating Officer was the same. 16. Thus, it is clear that unless and until, any bias is pointed out by the applicant, it cannot be said that the entire investigation is vitiated merely because the complainant and the investigation officer was the same. 17. The Supreme Court in the case of H.N. Rishbud and Another vs. State of Delhi, reported in AIR 1955 SC 196 has held that incompetence of the Investigating Officer cannot be argued after the charge-sheet is filed. It is further held that invalidation of investigation would not always nullify the cognizance or trial based thereon when the charge-sheet is filed. A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to a cognizance or trial because a valid and legal police report cannot be said to be a foundation of jurisdiction of the Court to take cognizance. 18. The Supreme Court in the case of Union of India vs. Prakash P. Hinduja and Another, reported in AIR 2003 SC 2612 has held as under:- ''20. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also be examined. 18. The Supreme Court in the case of Union of India vs. Prakash P. Hinduja and Another, reported in AIR 2003 SC 2612 has held as under:- ''20. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also be examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer below rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 and Section 165-A IPC or under Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N. Rishbud (supra) the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down:- "The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190 (1) (whether it is one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial." The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. The King AIR 1950 PC 26 held that if cognizance is in fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument that the CBI committed an error or irregularity in submitting the charge sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge sheet could not be set aside nor further proceedings in pursuance thereof could be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case." 19. It is next contended by the Counsel for the applicant that since all the independent seizure witnesses have turned hostile and they have not supported the prosecution case, therefore, the evidence of K.N. Sharma (P.W.5) is not reliable and thus, the prosecution has failed to prove the seizure of pistol from the possession of the applicant. The submission made by the Counsel for the applicant cannot be accepted and hence it is rejected. It is well established principle of law that the evidence of a police personnel cannot be discarded merely because he is a police personnel. A police personnel is also to be treated like any other ordinary witness and therefore, if the evidence of a police personnel is reliable, then the conviction of an accused can be recorded. In the present case, except criticizing the evidence of K.N. Sharma (P.W.5) merely on the ground that he is a police personnel, nothing could be pointed out from his evidence, which may make his evidence untrustworthy or unreliable. 20. It is also submitted by the Counsel for the applicant that there is nothing on record to suggest that the armorer Lalit Vyas (P.W.3) had returned the firearms in a sealed condition. However, the applicant did not put a single question to this witness in this regard. Thus, unless and until a witness is given an opportunity to explain a circumstance, the accused cannot criticize his evidence. 21. It is next contended by the Counsel for the applicant that since the seized pistol and the cartridges were not shown to the District Magistrate, therefore, the sanction for prosecution granted by the District Magistrate was bad in law. 22. Considered the submission made by the Counsel for the applicant. In the sanction order Ex.P./4, it is specifically mentioned that the sanction has been granted after looking at the seized firearms. 22. Considered the submission made by the Counsel for the applicant. In the sanction order Ex.P./4, it is specifically mentioned that the sanction has been granted after looking at the seized firearms. In the cross examination of Shiv Narayan Malviya (P.W.4), a question was put to him that this witness had not seen the seized firearms but in fact the sanction for prosecution was granted by the District Magistrate and this witness had merely proved the sanction for prosecution granted by the District Magistrate. No question was put to this witness that the District Magistrate had not seen the seized firearms. Thus, it cannot be said that the sanction for prosecution Ex. P./4 granted by the District Magistrate was not in accordance with law or was bad. 23. No other argument was advanced by the Counsel for the applicant. Even otherwise, the Counsel for the applicant could not point out any perversity in the findings given by the Courts below. Accordingly it is held that the applicant is guilty of committing offence under Section 25(1-B)(a) of the Arms Act. 24. So far as the question of sentence is concerned, the Trial Court has already awarded the minimum jail sentence, therefore, the rigorous imprisonment of one year and a fine of Rs.500/- with default imprisonment as awarded by the Trial Court does not require any interference. 25. Resultantly, the Judgment and Sentence dated 11-10- 2017 passed by Additional Sessions Judge, Budnagar, Distt. Ujjain, in Criminal Appeal No.15/2017, thereby affirming the judgment and sentence dated 24-12-2016 passed by J.M.F.C. Budnagar, Distt. Ujjain in Criminal Case No.158/2010 are hereby affirmed. 26. The applicant is on bail, his bail bonds and surety bonds are hereby cancelled. He is directed to surrender immediately for undergoing the remaining jail sentence. This revision fails and is hereby Dismissed.