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2023 DIGILAW 264 (JK)

Om Raj Sharma v. Banto Devi

2023-07-11

M.A.CHOWDHARY

body2023
JUDGMENT : 1. The petitioner are aggrieved of and have challenged order dated 20.10.2013, passed by learned Judicial Magistrate (Munsiff), Rajouri (“Magistrate”) whereby cognizance of the offence punishable under Section 302 RPC was taken by the trial Court against the petitioners and directed their personal appearance for committal of the case, in terms of Section 205-D CrPC, for Sessions Trial. 2. Before adverting to the grounds of challenge urged by the petitioners to assail the impugned order, it would be apt to note facts, in brief, leading to the filing of this petition. 3. A complaint was lodged by respondent No.1, before Senior Superintendent of Police, Rajouri alleging therein harassment, beating and snatching of jewelry etc against her husband, namely, Prabh Dayal. On her complaint, SSP Rajouri directed petitioner No.1 to call and present said Prabh Dayal before him. In compliance, petitioner No.1 deputed petitioner Nos. 2 and 3 on 12th February, 1995 to bring said Prabh Dayal in the Police Station so that he may be presented before the SSP Rajouri. As per the police, when the said Prabh Dayal was being brought to the Police Station in a bus, he alighted from the bus on the pretext to answer the call of nature, ran away and jumped into Nallah (Rajouri river) and attempted suicide. On this, FIR No.41/1995 came to be registered for commission of offence under Section 309 RPC. On next date the dead body of the said Prabh Dayal was recovered from the river at Muradpur. Investigation in the aforeosaid FIR was conducted by the police. During investigation, statements of Parveen Kumari, Vijay Kumar, Kamlesh Bali, Kuldeep Raj, Ravinder Kumar Sharma, Gagandeep Kour, Radha Kumari and Darshan Lal were recorded by the police. In view of death of the person who allegedly attempted suicide, closure report was filed on 13.06.1995, which was accepted by the competent Court of jurisdiction. 4. Aggrieved of the investigation into death of her husband, respondent No.1 filed a writ petition before this Court being OWP No.1129/2002 seeking fresh investigation into the killing of her husband through CBI or Crime Branch. This Court directed further investigation into the matter by an officer of or above the rank of Dy.SP. While these proceedings were pending, an enquiry under Section 176 CrPC was also conducted by District Magistrate, Rajouri. This Court directed further investigation into the matter by an officer of or above the rank of Dy.SP. While these proceedings were pending, an enquiry under Section 176 CrPC was also conducted by District Magistrate, Rajouri. During enquiry by the District Magistrate, statements of Vijay Kumar, Parveen Kumari, Ravider Kumar Sharma, Kuldeep Raj, Smt. Kamlesh Bali, Smt. Gagandeep Kour, Nirmal Kour, S. Karam Singh, Om Parkash, Darshan Lal and Pritam Singh were recorded. The post-mortem report of the deceased Prabh Dayal was also considered by the District Magistrate who after analyzing the statements of witnesses recorded during enquiry and considering the other material, came to the conclusion that deceased died due to head injuries immediately after he jumped into the river, which resulted into comma. The District Magistrate in his report further held that there was no foul play. 5. In compliance to the order of this Court dated 10.03.2006, further investigation was carried out. By considering the report of the Board of Doctors dated 09.10.2004, Dy. Superintendent of Police went on spot and again recorded statements of the witnesses. The said officer, too, concluded that death of the deceased might have been caused due to the wounds on the head which might have occurred due to striking of his head on the stones. Accordingly, closure report was filed on 22.08.2006. 6. Learned Chief Judicial Magistrate, Rajouri, suo motu called respondent No.1, Pushpa Devi and Kaushlya Devi and after recording their statements, referred the matter to the Dy. Inspector General of Police for carrying on further investigation. The Dy. Inspector General of Police constituted a Special Investigation Team comprising of Addl. SP, two Dy. SPs under the supervision of Senior Superintendent of Police. The SIT, after investigation, did not find any foul play and filed closure report on 09.03.2013. Thereafter, CJM, Rajouri called one Tara Singh, who stated that two constables were taking Prabh Dayal to the Police Station and when he enquired from the police personnel they did not tell any reason for arresting the deceased who took him to the police Station. To the similar extent is the statement made of one Dalbir Singh. Thereafter vide order dated 29.04.2013, learned Chief Judicial Magistrate, Rajouri directed the police, in terms of Section 156(3), to register FIR under Section 302 RPC. 7. To the similar extent is the statement made of one Dalbir Singh. Thereafter vide order dated 29.04.2013, learned Chief Judicial Magistrate, Rajouri directed the police, in terms of Section 156(3), to register FIR under Section 302 RPC. 7. Order dated 29th April, 2013 passed by learned CJM Rajpouri, was assailed by the State by filing revision before the Sessions Court, Rajouri. Learned Sessions Judge, Rajouri allowed the revision petition and set aside the order of the learned Chief Judicial Magistrate, Rajouri with a direction to pass fresh orders. Learned CJM, Rajouri transferred the case to court of learned Magistrate who vide order impugned dated 22.10.2013 took cognizance of the offence punishable under Section 302 RPC against the petitioners and directed their appearance for committal of the case. It is this order of the trial Court which is under challenge through this petition. 8. The impugned order has been assailed by the petitioners on numerous grounds including that Tara Singh and Dalbir Singh, on the basis of whose statements the trial Court has taken cognizance of the offence under Section 302 RPC against the petitioners, have made their statement after 18 years of the occurrence and why they kept mum for almost 18 years is not forthcoming from their statements. It is submitted that the order impugned is not sustainable in law, for, there is no evidence, which could connect the petitioners in commission of offence punishable under Section 302 RPC. 9. Learned counsel for the petitioners assails the impugned order on the ground that the learned magistrate has selectively relied upon the statements of two witnesses, namely Tara Singh and Dalbir Singh, who have deposed before the Magistrate for the first time, after a gap of almost 18 years, and ignored evidence of all other witnesses, which supported the case of the petitioners. He would argue that the reliance placed by the learned Magistrate on a judgment of the Supreme Court in the case of Dharam Pal & Ors. v. State of Haryana & Anr., ( AIR 2013 SC 3018 ) is misplaced as judgment nowhere says that even if there is no evidence, still case can be committed. 10. Mr. Koul, learned counsel for the petitioners would further submit that the petitioners have been condemned unheard. v. State of Haryana & Anr., ( AIR 2013 SC 3018 ) is misplaced as judgment nowhere says that even if there is no evidence, still case can be committed. 10. Mr. Koul, learned counsel for the petitioners would further submit that the petitioners have been condemned unheard. It is submitted that the order impugned amounts to miscarriage of justice and abuse of the process of law because three times investigation has been conducted about the occurrence in question, twice by the police and once by the District Magistrate, however, in all three investigations/enquiries the petitioners have been given clean chit and this vital aspect has been ignored by the learned Magistrate and only pointing out that the investigation conducted by the police was defective, learned Magistrate has taken cognizance of the alleged offence. Lastly, learned counsel argues that the constitutional right of the petitioners to speedy investigation and trial under Article 21 of the Constitution has been violated as the cognizance of the alleged offence has been taken after a gap of 18 years and that too without discussing the evidence on record. Learned counsel for the petitioner has relied on the following judgments to substantiate his arguments:- (i) Vakil Prasad Singh v. State of Bihar, (2009) 2 SCC 355 (ii) Moti Lal Saraf v. State of J&K and another, (2006) 10 SCC 560 (iii) Durga Datta Sharma @ Durga Lal Sharma v. State, CBI, 2003 Legal Eagle (GAU) 42. 11. On the other hand, learned counsel for the respondents supported the order impugned and prayed for dismissal of the petition. Learned counsel for respondent No.1 submits that the cognizance taken by the learned magistrate is perfectly legal and does not suffer from any illegality or infirmity warranting interference by this Court. Relying on the Dharam Pal’s case (supra), learned counsel for respondent No.1 submits that if the Magistrate is satisfied that a case is made out to proceed against the accused, he may proceed against such persons. 12. Heard learned counsel for the parties and perused the material on record. 13. It is really unfortunate and a sordid state of affairs that a person namely Prabh Dayal, being shifted by the police to the police station for being produced before SSP Rajouri, disappeared and next day, his dead body was found from a Nallah i.e. Rajouri river. 12. Heard learned counsel for the parties and perused the material on record. 13. It is really unfortunate and a sordid state of affairs that a person namely Prabh Dayal, being shifted by the police to the police station for being produced before SSP Rajouri, disappeared and next day, his dead body was found from a Nallah i.e. Rajouri river. The version of the police is that while being shifted, the said person, under the pretext of answering the call of nature, slipped away due to darkness in the evening and jumped into the Nallah. As a result, FIR No.41/1995 was registered at the Police Station for an offence of attempt to commit suicide under Section 309 RPC. However, next day, the dead body of said Prabh Dayal was recovered from the river at Muradpur and the case was later resulted into a closure report, which was accepted by the court of competent jurisdiction. 14. Respondent no.1, Banto Devi having been aggrieved filed OWP No.1129/2002 before this court seeking fresh investigation from CBI or Crime Branch into killing of her husband. This court, however, directed further investigation into the matter by an officer of or above the rank of Dy.SP. Before this investigation could be concluded, an enquiry was conducted by District Magistrate Rajouri, who, after recording evidence and analyzing the same, came to the conclusion that the deceased had died due to head injuries resulting into coma immediately after he jumped into the river. In compliance to the order of this court passed in OWP No. 1129/2002, the Dy. SP also investigated the matter, who also concluded that the death of the deceased might have been caused due to wounds on his head, possibly due to striking of his head on the stones and filed a closure report on 22.08.2006. However, the learned CJM Rajouri, in the meanwhile, directed DIG of Police of the concerned Range to constitute a Special Investigation Team (SIT) comprising of Additional SP, two Dy. SPs under the supervision of Senior Superintendent of Police. The SIT, after investigation, did not find any foul play and also filed closure report on 09.02.2013. The CJM Rajouri, on the basis of the statements of one Tara Singh and Dalbir Singh, that while deceased being taken to the police station, the two constables on their enquiry had not told them any reason for arresting the deceased. The SIT, after investigation, did not find any foul play and also filed closure report on 09.02.2013. The CJM Rajouri, on the basis of the statements of one Tara Singh and Dalbir Singh, that while deceased being taken to the police station, the two constables on their enquiry had not told them any reason for arresting the deceased. Both these persons, Tara Singh and Dalbir Singh, however, are stated to have appeared for the first time after a gap of almost 18 years and ignoring the evidence of all other witnesses, directed for registration of the case, in terms of Section 156(3) CrPC to register FIR under Section 302 RPC. The order dated 29.04.2013, passed by the learned CJM, was questioned before the Sessions Court, Rajouri through the medium of a revision petition and the order impugned was set aside by the Sessions Court with a direction to pass a fresh order. Meanwhile, the matter was transferred to the court of Judicial Magistrate (Munsiff), Rajouri, who vide impugned order, took cognizance of the offence under Section 302 RPC against the petitioners and directed their appearance as accused, for the committal of the case, in terms of Section 205-D CrPC for Sessions Trial. 15. It is this order dated 20.10.2013, whereby cognizance had been taken by the learned Magistrate and the case was posted for appearance of the petitioners as accused in the case for committal of the case in terms of Section 205-D of J&K CrPC for Sessions Trial for the commission of offence punishable under Section 302 RPC, that has been challenged through the medium of this petition with a prayer to quash the order. 16. The investigating agency, with regard to death of the deceased Prabh Dayal, initially lodged FIR for commission of offence punishable U/S 309 RPC against the deceased for having attempted to commit suicide and after the recovery of his dead body from a river at Muradpur in Rajouri on the next day of the alleged occurrence, carried out further investigation, so as to conclude the same into a closure report showing that the deceased had died as a result of his attempt to commit suicide, while he was being taken to police station for being produced before SSP, Rajouri in connection with a verbal complaint to him, by wife of the deceased with regard to her grievance against the husband. The closure report, however, was accepted by the court. Meanwhile, in a petition filed by respondent no.1 before this court as OWP No. 1129/2002 seeking fresh investigation into the killing of her husband through CBI or Crime Branch, this court had also directed the DIG Rajouri to get the matter re-investigated through an officer not below the rank of Dy.SP, in light of expert medical opinion. In compliance to the directions of this court, the investigation was entrusted to Dy. SP Headquarters K. S. Jasrotia, who again concluded the investigation in the shape of Final Report No. 75 dated 22.08.2006, before the court, who before final consideration of the report, summoned wife of the deceased to ascertain her satisfaction over the investigation and when she showed dis-satisfaction, she was asked to lead evidence before the court and statements of eight (08) witnesses produced by her were recorded including the wife of the deceased. 17. After consideration of the overall facts and circumstances of the matter like medical expert opinion ruling out the prosecution story regarding cause of death of the deceased by way of washing away in river, report of judicial enquiry conducted by District Magistrate Rajouri, whereby police officials escorting the deceased had been found guilty of taking the responsibility lightly and also calling of the deceased in the evening as unnecessary and the statement of the prosecution witnesses, the learned Chief Judicial Magistrate found that it was a case of custodial killing which required further investigation by a Special Investigating Team (SIT) under the personal supervision of DIG Rajouri and after hearing both the sides, the learned CJM vide order dated 29.04.2013 directed SHO, P/S Rajouri in terms of Section 156(3) CrPC to lodge FIR under section 302 RPC and other relevant provisions of law against the petitioners herein. 18. The order dated 29.04.2013 passed by the learned CJM Rajouri, however, was challenged by way of criminal revision before the Sessions Court, Rajouri, who while setting aside the order passed by the learned CJM Rajouri vide order dated 18.07.2013, holding that the course adopted by the learned CJM for directing to register a case by the police for further investigation was not available to him, remanded the case back to the court of CJM Rajouri with a direction to pass fresh orders. Meanwhile, it appears that the case came to be transferred to the court of learned Judicial Magistrate (Munsiff), Rajouri. 19. The learned Magistrate vide impugned order and having regard to the facts and circumstances of the case and taking into consideration the evidence produced by the aggrieved party, particularly, the statement of respondent no.1, wife of the deceased and on the basis of the evidence recorded a satisfaction that the petitioners, petitioner no.1 under whose orders the petitioners 2 and 3 had escorted the deceased from his house having been arrested to the police station and who had projected the case of the deceased having alighted from the vehicle to answer the call of the nature and jumped into the river to flee from them were found ‘prima facie’ to have committed an offence punishable u/s 302 RPC; and the petitioners herein who had been appearing through their counsel before the learned Magistrate were directed to cause their appearance on next date of hearing so as to await committal of the case to Sessions Court in terms of Section 205-D of J&K CrPC. 20. The learned Magistrate had heavily relied upon the provision of Section 114-A of Evidence Act which provided that where in a prosecution for an offence constituted by an act alleged to have caused bodily injury to a person there is evidence that such injury was caused during a period when such person was in the custody of police, the court may presume that such injury was caused by the police officer having custody of such person during that period. 21. 21. The learned Magistrate based on the evidence collected by him, while considering the closure report arising out of the FIR registered by the Police, recorded satisfaction that the deceased while being shifted to the police station and as per prosecution story, just at a distance of some minutes journey was allowed by the petitioners 2 and 3, who had arrested him from his house, to answer the call of the nature at a densely populated locality near the police station and then reported to the police station that he had jumped into the river and in view of medical opinion particularly the report of the forensic expert that the injuries just on the head of the deceased and on no other part of body, which was also found ante mortem, could not be possible in a case of drowning and washing away in a river, came to the conclusion that it was not a case of suicidal death, rather it was a case of custodial death for which the petitioners 2 and 3, who had brought the deceased from his house to the police station to be produced before SSP next day on the directions of the petitioner no.1, who was officer incharge of the police station on the date of occurrence were responsible. The learned Magistrate held that ‘prima facie’ there was a case to proceed against all these three petitioners for the commission of offence punishable U/S 302 RPC and vide impugned order had directed to cause appearance by the petitioners as accused for further committal of their case for Sessions trial. 22. Hon’ble the Supreme Court in a judgment titled ‘Dharam Pal & Ors. v. State of Haryana & Anr.’ reported as (2014) 3 SCC 306 has delved deep into on the subject when a final closure report is presented before the Magistrate as to what is the course available to the Magistrate to be adopted. The relevant extract of the observations of the Hon’ble Apex court are reproduced as under : “The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.PC. In the event the Magistrate disagrees with the police report, he has two choices. The relevant extract of the observations of the Hon’ble Apex court are reproduced as under : “The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.PC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that they may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column No. 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the court of sessions, he may commit the case to the Court of Session to proceed further in the matter. The plea that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial cannot be accepted. In other words, according to plea of appellant there could be no intermediary stage between taking cognizance under Section 190(1) (b) and Section 204 of the Code being summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Sessions Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial wold have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same.” 23. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial wold have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same.” 23. A human life had been lost and his wife has been struggling to get justice since the year 1995 when allegedly her husband was picked up by the two constables (petitioners 2 and 3) from his home to be taken to SSP Rajouri on a complaint of the wife of the deceased and who died while in police custody either while shifting or at the police station which was shown as a case of suicide by the police while investigating the case registered vide FIR No. 41/1995 and despite intervention of the court of magistrates and even this Court directing re-investigation into the case could not bring any result so far except that the learned Magistrate vide the impugned order has drawn an order to draw his satisfaction to the commission of offence punishable under section 302 RPC by the petitioners for custodial death of the deceased. 24. The learned Magistrate has passed a very lucid and reasoned order based on the statements of the witnesses produced by the wife of the deceased, the medical opinion with regard to the death of the deceased and the presumption under Section 114-A of the Evidence Act with regard to the custodial death while in police custody had rightly drawn the conclusion to hold that there was a prima facie case against them. The petitioners have failed to show as to how the process of the court was an abuse of the process or how the quashment of the proceedings against the petitioners shall secure the ends of justice, in the face of the facts and circumstances of the case. 25. The citations relied upon by the learned counsel for the petitioners with respect, are distinguishable and are not applicable to the facts and circumstances of the case on hand. In all the cases relsied upon by the learned counsel for the petitioners, it has been held that speedly trial is a fundamental right, however, in the case on hand, the stage of speedy trial had just reached, when the impugned order was passed, which was subjected to challenge by the petitioners. In all the cases relsied upon by the learned counsel for the petitioners, it has been held that speedly trial is a fundamental right, however, in the case on hand, the stage of speedy trial had just reached, when the impugned order was passed, which was subjected to challenge by the petitioners. It is also not out of place to mention that the delay in investigation ( not the trial) can also not be attributed to the complainant/victim party but the systemic/legal hurdles only. It will not serve any purpose, rather it will amount to miscarriage of justice, if this court accepts the contention of the petitioners to quash the proceedings against them in a case where a human life was lost in custody and the police had dragged its feet for over a period of more than two decades to investigate the case properly despite the intervention of the Magistrates courts as well as this court ordering fresh or re-investigation into the matter, the investigating agency had not investigated the case properly and rather tried to hush up the case to save the petitioners who are/were police officials. All the pleas raised in this petition can be raised by the petitioners while consideration of their charge against them by the competent court of law. 26. It is apparent on the face of the record that the investigating agency had failed to investigate the case fairly and impartially. The learned magistrate had adopted the right course which was available to him by taking cognizance of the commission of offence punishable u/s 302 RPC in the closure report so as to ensure that the petitioners/accused are tried for the commission of the offence, to bring them to justice. 27. For the foregoing reasons and observations made hereinabove, the petition, being devoid of any merit and substance, is dismissed. Interim direction, if any, shall stand vacated. 28. Subordinate record along with copy of this judgment is ordered to be sent down to the court of learned Judicial Magistrate (Munsiff) Rajouri for further proceedings.