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2018 DIGILAW 818 (RAJ)

CHUG SINGH v. STATE OF RAJASTHAN

2018-03-21

VIJAY BISHNOI

body2018
JUDGMENT AND ORDER : Vijay Bishnoi, J. This criminal misc. petition under Section 482 CrPC is filed by the petitioner being aggrieved with the order dated 22.02.2017 passed by Additional Sessions Judge, Anupgarh, District Sriganganagar (hereinafter to be referred as 'the revisional court'), whereby it has dismissed the Cr. Revision No.24/2015, which was preferred by the petitioner against the order dated 20.03.2015 passed by Judicial Magistrate, First Class, Gharsana, District Sriganganagar (hereinafter to be referred as 'the trial court') in FR No.99/2014 arising out of FIR No.529/2013 of Police Station, Gharsana, whereby it has allowed two applications, one preferred on behalf of respondent No.2 and another on behalf of Deputy Superintendent of Police, Anupgarh for returning the case diary for the purpose of further investigation. 2. Brief facts of the case are that respondent No.2 filed the FIR No.529/2013 on 25.12.2013 at Police Station, Gharsana, District Sriganganagar against the petitioner, who was posted as Circle Inspector of Police and one unknown person aged about 25 years, inter alia, alleging therein that she lodged an FIR in the year 2011 against one Dr Manohar and a Compounder Ajay Swami at Police Station, Rani Bazar, Bikaner. The investigation of said FIR was being conducted by the petitioner. On 03.08.2013, the petitioner called her on her cell phone No.7568113017 at Gharsana and when she alighted at Bus Stand, Gharsana, petitioner came to receive her and took her to his quarter in a car bearing registration number of Maharashtra. At his quarter, one boy of 25 years was also present and in his presence, the petitioner committed rape with her thrice and thereafter he went out leaving the respondent No.2 in the room and put a lock on the room. Again in the night, the petitioner forcibly gave alcohol to respondent No.2, which she consumed and the petitioner also consumed alcohol and thereafter raped her twice. Next day, the petitioner dropped her at her house at Bikaner. On 19.09.2013 again the petitioner took her to his quarter at Gharsana from Bikaner and committed rape with her thrice after forcibly giving her alcohol and sent her to Bikaner by bus. On Karwachauth, petitioner went to her house and stayed there in the night and next day again, he took her to Gharsana and kept her at his house for three days, and every day he committed rape with her. On Karwachauth, petitioner went to her house and stayed there in the night and next day again, he took her to Gharsana and kept her at his house for three days, and every day he committed rape with her. It is also alleged that the petitioner demanded Rs.62,000/- from her and her father but they failed to oblige him, then he forcibly took a gold chain from her as a Diwali gift, which is still with him. In the night of 27th September, 2013, the petitioner gave threatening to her on phone that she has to come to his house at Gharsana on the next day. On that day again he committed rape with her thrice in his house at Gharsana and threatened her not to disclose to anybody, otherwise he will kill her. Next day, the petitioner stayed in the house of the respondent at Bikaner, where her mother and father were also present and next day at about 5:00 A.M., he took her to Jodhpur and kept her in a Dharmshala situated at Ajit Colony, Jodhpur and again committed rape upon her. It is also alleged that on 16.10.2013, again the petitioner took her away to Jodhpur and on the way ahead to Nagaur, he committed rape upon her in his car. The petitioner used to come to her house at Bikaner and misbehave with her. 3. On receiving this information, the Police Station, Gharsana registered the aforesaid FIR against the petitioner for the offence punishable under section 376 (2) (A) (i) and 120-B IPC. Initially the investigation was conducted by Circle Inspector, Anupgarh, who was in receipt of a letter from the respondent No.2, wherein she requested to drop the complaint. Thereafter, the investigation of the case was transferred to Deputy Superintendent of Police, Raisinghnagar on the instructions of Inspector General of Police vide letter dated 06.01.2014. The Circle Inspector, Raisinghnagar continued with the investigation. From the case diary, it appears that the Circle Inspector, Raisinghnagar informed the Police Station, Raisinghnagar on 07.02.2014 that respondent No.2 is not cooperating in the investigation and is regularly making phone calls from her mobile to the investigating officer on his mobile and making frivolous allegations. 4. The Circle Inspector, Raisinghnagar continued with the investigation. From the case diary, it appears that the Circle Inspector, Raisinghnagar informed the Police Station, Raisinghnagar on 07.02.2014 that respondent No.2 is not cooperating in the investigation and is regularly making phone calls from her mobile to the investigating officer on his mobile and making frivolous allegations. 4. Be that as it may, the investigation of the case was pending with the Deputy Superintendent of Police, Circle Raisinghnagar for quite some time, however, in the meantime, the respondent No.2 filed an application to the Inspector General of Police to change the investigating officer and on the instructions of Inspector General of Police, the investigation was transferred to Additional Superintendent of Police, Raisinghnagar, who had started investigation and thereafter filed negative final report before the trial court on 15.04.2014 while concluding that the allegations levelled by the respondent No.2 in the FIR No.529/2013 dated 25.12.2013 of Police Station, Gharsana are false and no prima facie case is made out against the petitioner. On submission of the negative final report No.99/2014, notices were issued to the respondent No.2 by the trial court and the next date was fixed as 12.05.2014. On 12.05.2014, the respondent No.2 appeared before the trial court and the next date was fixed as 06.06.2014, on that day, the respondent No.2 moved an application before the trial court and sought some time to file protest petition. The matter was then fixed for 21.06.2014 and on that day, one Advocate filed his power on behalf of the respondent No.2 and also filed a protest petition against the negative final report and prayed some time to produce evidence. The matter was fixed on 19.07.2014 and on that day, on account of non-availability of the presiding officer, the matter was adjourned to 31.07.2014, on that day again, the matter was adjourned on account of suspension of work by the Bar and the matter was fixed for 13.08.2014. On 13.08.2014, the respondent No.2 filed an application and prayed for some time to produce the evidence. Time was granted and matter was fixed for 10.09.2014. On 10.09.2014, the respondent No.2 remained absent and the matter was fixed for 23.09.2014. On 23.09.2014, the next date was fixed as 08.10.2014. On that day, the respondent No.2 again sought time to produce evidence and the matter was fixed on 03.11.2014. Time was granted and matter was fixed for 10.09.2014. On 10.09.2014, the respondent No.2 remained absent and the matter was fixed for 23.09.2014. On 23.09.2014, the next date was fixed as 08.10.2014. On that day, the respondent No.2 again sought time to produce evidence and the matter was fixed on 03.11.2014. On 03.11.2014, the respondent No.2 moved a detailed application alleging that the investigation into the matter has not been conducted in a fair manner by the police and, therefore, the matter be investigated by the CBI. 5. On 25.02.2015, Deputy Superintendent of Police, Anupgarh also moved an application before the trial court as per the instructions of the Superintendent of Police, Sriganganagar and prayed that the case diary be handed over to him for the purpose of further investigation. In the said application, it is mentioned that the respondent No.2 has filed an application alleging that the investigation has not been conducted in a fair manner as two documents bearing forged signatures of the respondent No.2 were relied upon by the investigating officer, the call details of mobile phone of respondent No.2 have not been investigated properly and her statements have not been recorded under section 164 CrPC. 6. Learned trial court vide order dated 20.03.2015 ordered that as per the applications filed on behalf of respondent No.2 and the Deputy Superintendent of Police, Anupgarh, it is proper to send the matter for further investigation. The trial court issued direction to the Superintendent of Police to conduct further investigation by an officer to the rank of Deputy Superintendent of Police or the higher rank and thereafter the conclusion of the investigation be placed before it. 7. Being aggrieved with the order dated 20.03.2015 passed by the trial court, the petitioner preferred a revision petition before the revisional court, however, the revisional court has dismissed the revision petition. Hence, this criminal misc. petition under section 482 CrPC. 8. Learned counsel for the petitioner has submitted that the courts below have grossly erred in sending the matter for further investigation. It is contended that the negative final report was filed in the court in April, 2015 and since May, 2015, the respondent No.2 is regularly seeking time before the trial court to produce her evidence after filing of the protest petition. It is contended that the negative final report was filed in the court in April, 2015 and since May, 2015, the respondent No.2 is regularly seeking time before the trial court to produce her evidence after filing of the protest petition. Learned counsel for the petitioner has also submitted that without producing evidence before the trial court, suddenly respondent No.2 moved an application before the trial court on 03.11.2014 in which she had not prayed for issuing directions for conducting further investigation but only prayed that the investigation be conducted by CBI. 9. It is also contended that Deputy Superintendent of Police, Anupgarh has also filed the application with delay of about 10 months from the date of filing of final report before the trial court solely on the basis of complaint filed by the respondent No.2 and prayed for returning the case diary for the purpose of further investigation. 10. It is argued by learned counsel for the petitioner that from the facts and circumstances of the case, it is clear that the trial court in the mechanical manner has allowed the application preferred on behalf of Deputy Superintendent of Police, Anupgarh for conducting further investigation, though no such circumstance warranting further investigation exists in the present case. 11. Learned counsel for the petitioner has also argued that the trial court has placed reliance on decision of Hon'ble Supreme Court rendered in State of Karnataka by Nonavinakere Police vs. Shivanna @ Tarkari Shivanna, Special Leave Petition (Crl.) No.5073/2011 dated 25.04.2014 for sending the matter for further investigation on the ground that the statement of respondent No.2 has not been recorded under section 164 CrPC. It is contended that the Hon'ble Supreme Court in the above referred case has specifically ordered that the directions of recording statement of a victim under Section 164 CrPC in a rape case are applicable only in those cases, which are registered on or after the receipt of a copy of the said directions. Whereas, in the present case, the FIR was lodged in December, 2013 and the final report was filed on 15.04.2014 i.e. before the decision of the Hon'ble Supreme Court dated 25.04.2014 and, therefore, the trial court was not justified in placing reliance on the above referred decision of the Hon'ble Supreme Court on the ground that the statement of respondent No.2 has not been recorded under Section 164 CrPC. 12. 12. Learned counsel for the petitioner has further contended that otherwise also, the investigating officer in its negative final report has given reasons for not recording the statement of respondent No.2 under section 164 CrPC but the trial court without taking into consideration the same has passed the impugned order. 13. Learned counsel for the petitioner has also tried to impress the Court that the respondent No.2 is habitual in making complaints of heinous crimes such as rape case and in one of such cases, the petitioner was the investigating officer and when he refused to bow down the pressure of the respondent No.2 to file charge-sheet against two persons in a false case of rape, she filed the FIR No.529/2013 against the petitioner with malafide intention. 14. Learned counsel for the petitioner has, therefore, prayed that this criminal misc. petition may be allowed and the impugned orders passed by both the courts below be set aside. 15. Per contra, learned Public Prosecutor and respondent No.2, present in person, have vehemently opposed the prayer of the petitioner and argued that there is no illegality in the impugned orders passed by both the courts below, hence, no case for interference is made out. 16. Learned Public Prosecutor has also argued that it is mandatory for the investigating officer to record the statement of victim under Section 164 CrPC and in the present case, admittedly the statement of respondent No.2 has not been recorded under Section 164 CrPC and as such the courts below have rightly ordered for further investigation into the matter. 17. Heard learned counsels for the parties as well as the respondent No.2, present in person and perused the impugned orders and the case diary made available by the learned Public Prosecutor. 18. There is no quarrel about the proposition of law that after submission of the charge-sheet/final report before the concerned Magistrate or even after cognizance is taken against an accused-person by the concerned Magistrate and after appearance of the accused before it, the investigating agency can request the concerned Magistrate to return the case file for further investigation, however, the same can be done on the detection of material evidence only to secure fair investigation and trial. 19. 19. The Hon'ble Supreme Court in Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel & Ors., (2017) 4 SCC 177 while examining the scope of Section 173(8) of the Criminal Procedure Code has held as under: "49. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefore to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand." 20. In the present case, the respondent No.2 filed an application before the concerned Magistrate on 03.11.2014 only with a prayer for getting the allegations contained in the FIR No.529/2013 of Police Station, Gharsana, culminating in FR No.99/2014, investigated by the CBI and not with the prayer for a direction to the investigating agency to conduct further investigation. It is also to be noticed that the said application was filed by the respondent No.2 after filing of the protest petition before the trial court against the FR No.99/2014 and after seeking several opportunities for producing evidence in support of the protest petition. 21. Deputy Superintendent of Police, Anupgarh vide application dated 25.02.2015 requested for returning the case diary for the purpose of further investigation, however, from perusal of the said application, it is clear that it has not been mentioned in the application that after submission of the FR No.99/2014, any material evidence has been detected. 21. Deputy Superintendent of Police, Anupgarh vide application dated 25.02.2015 requested for returning the case diary for the purpose of further investigation, however, from perusal of the said application, it is clear that it has not been mentioned in the application that after submission of the FR No.99/2014, any material evidence has been detected. In the said application, only it is mentioned that the same is preferred on the instructions of Superintendent of Police, Sri Ganganagar as respondent No.2 has complained that fair investigation has not been conducted in the matter, such as no investigation has been conducted in respect of documents, which bear forged signatures of respondent No.2, no investigation has been conducted in respect of mobile numbers of the complainant and its tower location and the statement of the victim has not been recorded under section 164 CrPC. 22. As stated earlier in the application dated 25.02.2015 preferred by Deputy Superintendent of Police, Anupgarh, there is no mention that any material evidence has been detected after filing of the FR No.99/2014. 23. It is true that the statement of respondent No.2 has not been recorded under section 164 CrPC, however, this Court is of the opinion that the directions issued by the Hon'ble Supreme Court in State of Karnataka by Nonavinakere Police vs. Shivanna @ Tarkari Shivanna has no applicability in the present case because in the said decision, the Hon'ble Supreme Court has clearly directed that the directions regarding the recording of the statement of the victim under section 164 CrPC are required to be complied in the cases, which are registered on or after the receipt of a copy of the said directions of the Hon'ble Supreme Court. 24. In the present case, the FIR was registered on 25.12.2013 and the FR was filed on 15.04.2014 i.e. before issuing of the directions by the Hon'ble Supreme Court. 25. Moreover, it is also to be noticed that Assistant Superintendent of Police, to whom the investigation was assigned, has clearly mentioned in the FR No.99/2014 that he approached the respondent No.2 on 15.03.2014 but she refused to record her statements, even her father also refused to get her statement recorded. Later on, on 26.03.2014, respondent No.2 recorded her supplementary statement but no other relative of her gave statement. Later on, on 26.03.2014, respondent No.2 recorded her supplementary statement but no other relative of her gave statement. The investigating officer has also meticulously examined the call details of the petitioner's mobile number as well as of respondent No.2 for the purpose of ascertaining their location on the specific dates, for which respondent No.2 levelled allegations that on those dates the petitioner raped her at Gharsana, near Nagaur and Jodhpur and has concluded that as per the call details of that dates, the location of the mobile phone of the respondent No.2 was found at Bikaner only and not at Gharsana, near Nagaur or Jodhpur. 26. The investigating officer has also concluded that earlier the respondent No.2 had filed two cases being case No.219/2011 and 313/2011, which were assigned to the petitioner for investigation and in order to create pressure upon the petitioner to file charge-sheet in those cases, the respondent No.2 has filed false complaint against the petitioner. 27. Having considered all the facts and circumstances of the case and particularly noticing that the respondent No.2 in her application preferred on 03.11.2014 before the concerned Magistrate and Deputy Superintendent of Police, Anupgarh in his application did not mention about the detection of any material evidence after filing of the FR No.99/2014, I have no hesitation in holding that there is no justification in sending the matter for further investigation. 28. Resultantly, this criminal misc. petition is allowed. The impugned orders dated 22.02.2017 and 20.03.2015 passed by Additional Sessions Judge, Anupgarh, District Sriganganagar and Judicial Magistrate, First Class, Gharsana, District Sriganganagar respectively are set aside. The trial court is directed to dispose of the protest petition filed by the respondent No.2 expeditiously after providing sufficient opportunity to her to produce her evidence in support of the protest petition.