Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 106 (GAU)

Nani Kanya v. State Of Arunachal Pradesh

2022-02-03

ROBIN PHUKAN

body2022
JUDGMENT : ROBIN PHUKAN, J. This writ petition, under Article 226 read with Article 227 of the Constitution of India is preferred by Smti. Bullo Kanya (actual name withheld) for issuing direction to the respondent authorities to conduct further investigation of Ziro P.S. Case No. 63/2016, (State of A.P.-vs-Dr. Moli Riba), corresponding to G. R. Case No.103/2016, under sec. 342/354/506 Indian Penal Code, which is pending before the learned Chief Judicial Magistrate at Yupia. 2. The factual background leading to filing of the present petition is adumbrated hereinbelow:- "The petitioner is a working lady, engaged as Data Entry Operator (for short, 'DEO') on contractual basis, under the District Medical Officer (DMO) Lower Subansiri District, Ziro. On 28/7/2016, at around 13.30 to 14.00 hrs. Dr. Moli Riba, the DMO, Ziro called her to his office chamber for preparing official documents. Then, he abused her, and molested her, and attempted to commit rape upon her, in his office chamber, in broad day light, by kissing her and pressing her breast. She then resisted him and shouted, but, the Doctor closed her mouth and left the room threatening her with dire consequences in the event of reporting the matter to anybody else. Later on, she received one 'Sorry' message from one unknown Mobile No. 8794520263, at around 3.00 PM. Thereafter, on 29/7/2016, the victim woman lodged one FIR with the Officer-in-Charge, Ziro Police Station. The Officer-in-Charge, Ziro Police Station then registered Ziro P.S. Case No. 63/2016, under Sec. 354/376/511/506/342, of the Indian Penal Code and got the same investigated. During investigation, the Investigating Officer (I.O.) visited the place of occurrence, examined the witnesses, got the victim examined by Doctor and collected the report and on completion of investigation, he laid the Charge-Sheet against the accused Dr. Moli Riba, the then DMO, to stand trial in the Court, under Ss. 354/342/506 of the Indian Penal Code, before the Court of learned CJM, Ziro. Then, being dissatisfied with the manner of investigation, the petitioner preferred this petition for directing respondent authority to conduct further investigation of Ziro P.S. Case No. 63/2016". 3. The petitioner having gone through the final report noticed many flaws and defects. 354/342/506 of the Indian Penal Code, before the Court of learned CJM, Ziro. Then, being dissatisfied with the manner of investigation, the petitioner preferred this petition for directing respondent authority to conduct further investigation of Ziro P.S. Case No. 63/2016". 3. The petitioner having gone through the final report noticed many flaws and defects. Then having been dissatisfied with the manner of investigation, she has submitted one representation on 22/11/2016, for further investigation of the case by a superior officer stating that she is not satisfied with the final report/Charge-Sheet and the way investigation is being carried out by the concerned I.O. But, nothing has been done upon the same. The pleaded imputation of the petitioner is that the I.O. has dropped sec. 376/511 of the Indian Penal Code from the case and thereafter he laid the Charge-Sheet, and that she has not been informed by the I.O. about the filing of the final report/Charge-Sheet under Sec. 173 of the Cr.P.C. and that the 'Sorry' message, which she received from Mobile No. 8794520263, at around 3.00 PM, belongs to the accused Dr. 376/511 of the Indian Penal Code from the case and thereafter he laid the Charge-Sheet, and that she has not been informed by the I.O. about the filing of the final report/Charge-Sheet under Sec. 173 of the Cr.P.C. and that the 'Sorry' message, which she received from Mobile No. 8794520263, at around 3.00 PM, belongs to the accused Dr. Moli Riba and she found the same from the true caller mobile application and the investigating officer did not even try to seize the mobile and sim card and nor he tried to investigate the origin of the message so contained in her mobile and as such, vital evidence of the case has been overlooked by the concerned I.O. It is her further contention that in the office chamber of District Medical Officer, CCTV was installed in the month of July prior to the incident but the same was found to be missing and the accused Doctor called her to his office chamber in between 1.30 to 2.00 hrs when all the staffs left for lunch break and the investigating officer did not try to find out as to why the CCTV has not been installed in the office and that the statement recorded by the I.O. under Sec. 161 Cr.P.C. are similar in words except the name, designation age of the witnesses and in her statement under Sec. 164 Cr.P.C. before the learned CJM, Ziro, she has specifically stated about the CDR in Mobile handset of the accused person, but the I.O. never tried to collect the same and that the scope of further investigation is wide open in the view of Sec. 173 (8) Cr.P.C. and that she has also preferred one petition before the learned CJM, Yupia on 26/5/2017, for further investigation, but the same was dismissed on the ground that she has not taken leave of the Court to conduct or assist prosecution as provided under Sec. 302 (2) of Cr.P.C. and that cognizance has already been taken and there is no scope for direction for further investigation. It is also pleaded that further investigation may be carried out by adopting modern techniques like Test of Narco Analysis or polygraph or Brain mapping. It is also pleaded that further investigation may be carried out by adopting modern techniques like Test of Narco Analysis or polygraph or Brain mapping. It is the further contention of the petitioner that Article 21 of the Constitution of India guaranteed fair trial which includes a fair investigation and without a fair investigation, fair trial is not all possible. Therefore, it is contended to direct the respondent authority to constitute a special investigation team or to direct to conduct further investigation to unearth the truth of the case, which is pending trial before the learned CJM, Yupia. 4. The respondent No. 4/ the I.O. of the case, has submitted one affidavit-in-opposition denying the averments made by the petitioner in her petition. It is stated that the case was investigated properly under the supervision of the then Superintendent of Police, Ziro and that after completion of investigation, no offences under Sec. 376/511 IPC is found to be established against the accused and therefore, said offences were dropped at the time of filing of the Charge-Sheet and that the relatives of husband of the petitioner frequently visited the Police station about the progress of the case and factum of the submission of Charge-Sheet was informed to her relatives, and the CDR of Mobile No. 8794520263 and also the record of the subscriber's form was collected and it was found that the subscriber of the said SIM card is one Shri Sullo Rijang of village-Siro and not of Dr. Moli Riba as contended by the petitioner and that the statement of witnesses examined by the I.O. is almost the same as no witnesses ever deposed that he or she heard shouting of the victim and therefore, it is contended to dismiss the petition. 5. The respondent No. 5/Dr. Moli Riba also submitted affidavit-in-opposition denying the averments made in the writ petition by the petitioner. It is stated that no legal and constitutional rights of the petitioner has been violated by the investigating agency and that he was arrested without preliminary enquiry by the Police, and it was just to satisfy the higher authority and that Charge-Sheet has already been submitted before the learned CJM, Yupia and despite, the present writ petition is filed with unreasonable claim and the rejection order dtd. 26/6/2017, passed by the learned CJM, Yupia, by which, the prayer for further investigation was rejected, has not been challenged in this petition and that he has not sent any message with the word 'Sorry' to the petitioner and even for the sake of argument it is accepted that the message was sent which does not meant admission of guilt, and that on the night of 29/6/2016, to 30/6/2016, the computer with its accessories and the complete set of CCTV camera were stolen by unknown miscreants and to that effect respondent No. 5 had lodged one FIR with Ziro Police Station and the prayer for investigation has already been rejected by the learned CJM, Yupia and there is no merit in this writ petition, and therefore, it is contended to dismiss the same. 6. I have heard Mr. K. Tari, the learned counsel for the petitioner and Mr. T. Ete, the learned Addl. PP for the State of Arunachal Pradesh as well as Mr. T. T. Tara, the learned counsel representing the private respondent No.5. 7. Mr. Tari, the learned counsel for the petitioner submits that the way the I.O. has conducted investigated is far from satisfactory, and there is scope for further investigation in respect of the mobile from which the victim has received the 'sorry' message and the CDR of the said Mobile though collected by the I.O. is not a part of the Charge Sheet and by not conducting the fair investigation, the respondent authorities have violated the right to fair investigation and trial of the petitioner as enshrined under Article 21 of the Constitution of India and therefore, it is contended to allow the petition. Mr. K. Tari, the learned counsel for the petitioner, in support of his submission, has also referred one case law in Pooja Pal Vs. Union of India and Ors., reported in (2016) 3 SCC 135 , where it has been held that:- "A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore cannot be alienated from each other with levity. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though, well demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice." It has also been held that:- "The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi vs Irshad Ali @ Deepak and others: (2013)5SCC 762 to encompass two imperatives; firstly the investigation must be unbiased, honest, just and in accordance with law and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction." 8. Mr. Tari also referred another case law in Bikash Ranjan Rout Vs. State through the Secretary (Home), Government of NCT of Delhi, New Delhi: (2019) 5 SCC 542 , wherein it has been held that Magistrate has no power to direct 're-investigation' (de-novo) in the case initiated on the basis of police report. A Magistrate has the power to direct "further investigation" after filing of a police report, to make good of his submission. 9. On the other hand, Mr. T. Ete, the learned Addl. PP submits that the petitioner could have filed revision petition against the order dtd. 26/5/2017, of the learned CJM, by which, her petition for further investigation was rejected, but without exhausting that remedy and without her case being an exceptional one, she filed this petition which is not at all maintainable. It is further submitted that after due investigation, the I.O. has laid the Charge-Sheet against the accused before the learned Court below and the learned Court below has already taken cognizance upon the same and it is pending for trial. Referring to case law in Sakiri Vasu Vs. State of U.P. and Ors., reported in 2007 0 Supreme (SC) 1563, Mr. Ete, the learned Addl. Referring to case law in Sakiri Vasu Vs. State of U.P. and Ors., reported in 2007 0 Supreme (SC) 1563, Mr. Ete, the learned Addl. PP submits that the Magistrate has very wide power to direct registration of an FIR and to ensure a proper investigation and he can monitor the investigation to ensure that investigation is being done properly and that High Court should discourage the practice of filing a writ petition or petition under Sec. 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the Police, or after being registered, proper investigation has not been done by the Police and for this grievance, remedy lies under Sec. 36 and 154(3) Cr.P.C. before the concerned Police officer, and if that has not been availed, the remedy lies under Sec. 156 (3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Sec. 200 Cr.P.C. and not by filing a writ petition or a petition under Sec. 482 Cr.P.C. Mr. Ete, therefore, contended to dismiss the petition. 10. On the other hand, Mr. T. T. Tara, the learned counsel for respondent No. 5 submits that the petitioner has failed to demonstrate that the I.O. has committed any patent illegality in investigation and therefore, the petitioner cannot invoke extra ordinary jurisdiction of this Court for issuing the writ of certiorari. Further, it is submitted that the order of the learned Court below dtd. 26/5/2017, is still in force and the same is not yet been assailed. Mr. Tara, the learned counsel for respondent No. 5 also referred 2 case law in Randhir Singh Rana Vs. State (Delhi Administration) (1997) 1 SCC 361 , where it has been held that a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused cannot order of his own further investigation in the case. Mr. Tara also referred another case law in Radhey Shyam and Anr. Vs. State (Delhi Administration) (1997) 1 SCC 361 , where it has been held that a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused cannot order of his own further investigation in the case. Mr. Tara also referred another case law in Radhey Shyam and Anr. Vs. Chhabi Nath and Ors: (2015) 5 SCC 423 , where it has been held that "control or working of the subordinate courts in dealing with judicial orders is exercised by way of statutory appellate or revisional power or power of superintendence under Article 227 of the Constitution of India not by way of writ jurisdiction under Article under Article 226 of the Constitution of India," in support of his submission. 11. In reply to the above submission Mr. K. Tari, the learned counsel for the petitioner submits that the decision referred by the learned counsel for respondent No. 5 has already been over-ruled and that the CDR which the I.O. has collected is not a part of the Charge-Sheet and as such, it is contended to allow the petition. 12. Having heard the submission of learned Advocates of both the sides, I have carefully gone through the pleadings of the parties and the documents placed on the record and also the record of the learned Court below. Also, I have gone through the case laws referred by the learned counsel for the petitioner of the concerned parties. 13. It appears that concern of the petitioner is that the I.O. of the case has not investigated the case properly, and that the I.O. has not communicated to the petitioner about completion of investigation and submission of Charge-Sheet before the learned Court below and that she has received the 'Sorry' message from the Mobile No.8794520263 at around 3.00 PM on the very date of occurrence i.e. 28/7/2016, and in true caller application of her mobile, the sender's name was reflected as Dr. Moli Riba, but the I.O. has failed to size the Mobile and that the CCTV Camera installed in the office chamber of the DMO was missing and the I.O. has not made a single effort to find out the same and that the statements of the witnesses examined under Sec. 161 Cr.P.C. are same except the name, designation, age etc, are taken note of from the pleading as well from the submissions of the parties. 14. However, from the affidavit-in-opposition of respondent No. 4 I find that the case has been investigated properly and after completion of investigation, Charge-Sheet has been laid before the learned Court below under Sec. 173 Cr.P.C. The affidavit-in-opposition further reveals that the husband and relatives of the petitioner use to visit the Police station frequently to enquire about the investigation of the case and they are well aware of submission of charge in the case. It is further reveals that the CDR of Mobile No. 8794520263 was collected and from the said CDR, the name of the subscriber was found to be of one Sullo Rijang of Village-Siro, Lower Subansiri District and the same and the same does not belong to Moli Riba, the accused of the case. It also appears that the witnesses examined during the investigation were staff of District Medical Officer and they were examined one by one and none of the witnesses stated about hearing of any sound of shouting of the victim and therefore, their statement are almost the same. 15. On the other hand, the affidavit-in-opposition, submitted by the respondent No. 5 Dr. Moli Riba reveals that the computer set of DMO's officer chamber with its accessories and the complete set of CC TV Camera were stolen by unknown person and to that effect one FIR was also filed before the Ziro Police Station against the unknown miscreants. These facts, so mentioned in the affidavit of the respondent Nos. 4 and 5 have not been disputed by the writ petitioner by filing any affidavit-in-reply. Even her counsel also not controverted the same during argument. 16. Having not been disputed, these facts, as reflected in the affidavit-in opposition of respondent Nos. 4 and 5, goes a long way to address the grievances so raised by the petitioner in her petition. And this has been rightly pointed out by the learned Addl. Even her counsel also not controverted the same during argument. 16. Having not been disputed, these facts, as reflected in the affidavit-in opposition of respondent Nos. 4 and 5, goes a long way to address the grievances so raised by the petitioner in her petition. And this has been rightly pointed out by the learned Addl. P.P. and also by the learned counsel for the respondent No.5. It is a fact that the I.O. has not seized the Mobile from which the 'Sorry Message' was allegedly sent by the accused/respondent No.5. But, having collected the CDR and the subscriber's details of the said mobile number, the I.O. found that the same belongs to one Sullo Rijang of Village-Siro, Lower Subansiri District not of Dr. Moli Riba and as such, the question of seizure of the same does not arise and no fault have been found with the I.O. in this regard. 17. It is a fact that fair investigation is a part and parcel of right to fair trial as enshrined in Article 21 of the Constitution of India and enunciated by Hon'ble Supreme Court in a catena of its decision. Reference in this context may be made to decision of Hon'ble Supreme Court in Nirmal Singh Kahlon: (2009) 1 SCC 441 , wherein it has been held that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. Again in Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1 , Hon'ble Supreme Court has elaborately dealt with the requirement of fair investigation observing as under:- "...... The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India...." "It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society...." The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation.... The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation.....". 18. Now the question is when the court can direct re-investigation or further investigation. And can in the given facts and circumstances of the case in hand re-investigation or further investigation can be directed by exercising the jurisdiction under Article under Article 226 of the Constitution of India. While dealing with the issue of re-investigation and further investigation Hon'ble Supreme court in K. Chandrasekhar Vs. State of Kerala and Ors. (1998) 5 SCC 223 ; Ramachandran Vs. R. Udhayakumar and Ors. (2008) 5 SCC 413 ; and Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel and Ors. Vs. State of Gujarat (2009) 6 SCC 332 ; and Kishan Lal Vs. State of Kerala and Ors. (1998) 5 SCC 223 ; Ramachandran Vs. R. Udhayakumar and Ors. (2008) 5 SCC 413 ; and Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel and Ors. Vs. State of Gujarat (2009) 6 SCC 332 ; and Kishan Lal Vs. Dharmendra Bafna (2009) 7 SCC 685 , has emphasized that where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Sec. 173(8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a re-investigation. "Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction." It has also been held that- "Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere." (vide: S.N. Sharma Vs. Bipen Kumar Tiwari and Ors. AIR 1970 SC 786 ). 19. Again in Kashmeri Devi Vs. Delhi Administration and Anr. AIR 1988 SC 1323 , this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair. 20. Referring to the case laws discussed herein above Hon'ble Supreme Court in Babubhai Vs. State of Gujarat and Ors: (2010) 12 SCC 254 ; held that:- "that the scheme of investigation, particularly, Sec. 173(8) Cr.P.C. provides for further investigation and not of re- investigation. Therefore, if the Court comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct for further investigation and ordinarily not for re-investigation. The expression ordinarily means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. "Ordinarily" excludes "extra-ordinary" or "special circumstances". (vide: Kailash Chandra Vs. The expression ordinarily means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. "Ordinarily" excludes "extra-ordinary" or "special circumstances". (vide: Kailash Chandra Vs. Union of India AIR 1961 SC 1346 ; Eicher Tractors Ltd., Haryana Vs. Commissioner of Customs, Bombay AIR 2001 SC 196 ; and State of A.P. Vs. Sarma Rao and Ors. AIR 2007 SC 137 ). Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, it may direct for investigation de novo wherein the case presents exceptional circumstances." 21. In the instant case, after hearing the learned Advocates of the parties at length and also having gone through the pleadings of the parties and the documents places on record and also considering the ratio laid down in the cases discussed herein above this court left unconvinced that there exist any exceptional circumstance so as to invoke the extra ordinary jurisdiction under Article 226 of the Constitution of India of the Constitution for issuing direction for further investigation. There is also no material to show any miscarriage of justice. Nothing has also been projected to arrive at a conclusion that the investigation has been done in a manner with an object of helping a party. The investigating officer has already submitted charge sheet against the accused after due investigation, to stand trial. In the given facts and circumstances of the case, it cannot be said that serious irregularity in investigation had taken place. Nothing is also there to show that the Investigating Officer has exercised power mala-fidely while investigating the case. 22. Under the above facts and circumstances, this court left impressed by the submission made by the counsel for the petitioner. On the other I find substance in the submission of learned Addl. P.P. and Mr. T.T. Tara, learned counsel for the respondent No.5, and the case laws referred by them also fortified their submissions. Accordingly, I am inclined to record concurrence to the same. The pleaded imputation of the petitioner appears to be sufficiently addressed. On the other I find substance in the submission of learned Addl. P.P. and Mr. T.T. Tara, learned counsel for the respondent No.5, and the case laws referred by them also fortified their submissions. Accordingly, I am inclined to record concurrence to the same. The pleaded imputation of the petitioner appears to be sufficiently addressed. And regarding the imputation of no-enclosing of the CDR of the mobile phone, from where the petitioner has received the 'sorry' message, with the charge sheet, this court is of the view that the learned trial court may, if it deemed necessary, call for the same during trial from the Investigating Officer by exercising the power conferred upon it, under Chapter VII of the Code of Criminal Procedure. 23. In the result I find no merit in this petition, and accordingly, the same stands dismissed. The parties have to bear their own cost.