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2023 DIGILAW 434 (UTT)

Deepak Kumar v. State of Uttarakhand

2023-07-31

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. Before dealing with the facts and arguments, which have been extended by the learned counsel for the applicant, it will be apt to observe as to the manner in which the relief has been modulated by the learned counsel for the applicant, which is extracted hereunder: “(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1, 2 and 3 to provide the adequate security to the life and liberty of the petitioners. (ii) Issue a writ, order or direction in the nature of mandamus commanding private respondents not to interfere in the personal life and liberty of the petitioners. (iii) Issue or pass any other and further order or direction which this Hon’ble court may deem fit and proper in the circumstances of the case.” 2. In fact under the garb of the C482 application, an attempt, which has been made by the learned counsel for the applicant, is to direct the police authorities to reinvestigate into the matter pertaining to the set of allegations which had been leveled in the FIR No. 33 of 2022, dated 28.04.2022, as it was got registered by the complainant/respondent under sections 376 and 506 of IPC, at Police Station Jhankaiya, District Udham Singh Nagar. 3. Further the challenge has also been given by the applicant to the charge-sheet dated 18.06.2022, which has been submitted in Criminal Case No. 1042 of 2022, State of Uttarakhand vs. Deepak. As a consequence of the submission of the chargesheet dated 18.06.2022, the criminal proceedings have been put to motion resulting into the issuance of the summoning order dated 03.08.2022, by the court of Judicial Magistrate, Khatima, District Udham Singh Nagar. 4. Primarily, the tenacity of the argument extended by the learned counsel for the applicant was that, prior to the submission of the charge-sheet by the Investigating Officer, the investigation was, in fact, was a defective, which was being carried, resulting into a fraudulent acquisition of the present applicant in commission of the offence, which has been complained of in the FIR No. 33 of 2022, for his alleged involvement in commission of the offence under sections 376 and 506 of IPC. 5. 5. The attempt made by the learned counsel for the applicant was to draw the attention of this Court to the contents of the FIR, where he intended to contend that this will not be a case under section 376 of IPC, for the reason being that, it was contended that the applicant had a relationship with the complainant for more than the last five years (though without there being any specific date in the FIR), but as per the FIR, it was contended that for the first time the incident had occurred on 14.05.2021, wherein, it has been stated that the under the pretext of taking labour work in the sugarcane field, the complainant was taken to the sugarcane field, and the accompanying sister Manisha, was tried to be prevented from being present at the place in question, by asking her to fetch water, and it was in these circumstances, that the offences was said to have been committed on 14.05.2021, and thereafter, it was contended that it continued to be established for a couple of other occasions. 6. The question would be as to whether there was a consensual relationship or not? and whether the submission of the charge-sheet was as a consequence of the defective investigation? which was conducted by the Investigating Officer, which could at all necessitate for issuance of the direction for the reinvestigation by exercising the inherent powers under section 482 of the Cr.P.C. 7. Learned counsel for the applicant has primarily contended that since this is a case of the malicious prosecution, and the report submitted by the Investigating Officer itself was defective, it would be a case for a direction to be issued for reinvestigation by this Court in the exercise of its powers under section 482 of Cr.P.C. for the reason being that the reinvestigation, since not being an ambit contained under the Cr.P.C. unlike the provisions which is limited to the extent of further investigation under sub-section (8) of section 173 of Cr.P.C. this Court should rather exercise its power for issuing an appropriate direction for reinvestigation of the matter. 8. 8. In support of his contention to justify his argument with regards to the necessity of issuance of direction for reinvestigation into the matter, the learned counsel for the applicant has attempted to draw the attention of this Court from the transcriptions of the conversation, which has been held between the complainant and the applicant in order to contend that they were having a cordial relationship for a sufficiently long time, and as such, the offence under section 376 of IPC, would not be made out, and non consideration of the transcription of conversation held between the applicant and the complainant by the police authorities would itself amount to be a defective investigation, based on which no prosecution could be made against the present applicant, as a consequence of which the issuance of the summoning order was made by the court of Judicial Magistrate, Khatima, District Udham Singh Nagar, against the present applicant on 03.08.2022. 9. The argument of the learned counsel for the applicant is primarily based upon the fact that since the code of criminal procedure doesn’t contemplate a power being vested to the courts created under the Cr.P.C. for issuing the direction for the reinvestigation, it is only the High Court which can direct the reinvestigation to be carried in the light of the ratio laid down by the Hon’ble Apex Court in the judgment reported in Vinay Tyagi vs. Irshad Ali @ Deepak and Another, 2013 (5) SCC 762 on which the learned counsel for the applicant has relied upon, and particularly, he has drawn the attention of this Court, as to what would be the scope of exercise of powers by the High Court under section 482 of Cr.P.C. for the purposes of issuing directions for reinvestigation, and he has drawn the attention of this Court to the contents of paragraphs 16 and 18, of the said judgment, which are extracted hereunder: “16. However, in the case of a ‘fresh investigation’ and ‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh/de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala-fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’. In the case of Sidhartha Vashisht vs. State (NCT of Delhi), (2010) 6 SCC 1 , the Court stated that it is not only the responsibility of the investigating agency, but also 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. An equally enforceable canon of the criminal law is that high responsibility lies upon the investigating agency not to conduct an investigation in a tainted or 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 de hors his position and influence in the society. 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 de hors his position and influence in the society. The maxim contra veritatem lex nunquam aliquid permittit applies to exercise of powers by the courts while granting approval or declining to accept the report. In the case of Gudalure M.J. Cherian and Others vs. Union of India and Others, (1992) 1 SCC 397 , this Court stated the principle that in cases where charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders. Further, in the case of R.S. Sodhi, Advocate vs. State of U.P. 1994 SCC Supp. (1) 142, where allegations were made against a police officer, the Court ordered the investigation to be transferred to CBI with an intent to maintain credibility of investigation, public confidence and in the interest of justice. Ordinarily, the courts would not exercise such jurisdiction but 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. In other words, if special circumstances exist, the court may exercise its jurisdiction to direct ‘fresh investigation’ and even transfer cases to courts of higher jurisdiction which may pass such directions. 18. Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct ‘further investigation’ or ‘fresh investigation’. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct ‘fresh’ or ‘de novo’ investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. Reference in this regard can be made to K. Chandrasekhar vs. State of Kerala, (1998) 5 SCC 223 , Ramachandran vs. R. Udhayakumar, (2008) 5 SCC 413 , Nirmal Singh Kahlon vs. State of Punjab and Others, (2009) 1 SCC 441 , Mithabhai Pashabhai Patel and Others vs. State of Gujarat, (2009) 6 SCC 332 and Babubhai vs. State of Gujarat, (2010) 12 SCC 254 .” 10. With all due reverence and humility at my command, the application of the principal decided by the Hon’ble Apex Court, is not to be commonly applied in all cases, irrespective of the circumstances under which the trial or the investigation was being conducted, and the logic behind it is that the principle laid down by the Hon’ble Apex Court or by the High Court always depends upon the mental framework of court, at the time, when the court renders a judgment while considering the facts of the said case. For example in the case of Vinay Tyagi (Supra), which the learned counsel for the applicant has referred to, there were two questions, which was directed to be referred to, to be decided by the Hon’ble Apex Court, which are extracted hereunder: “Question No. 1: Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a Court? If so, to what effect? Question No. 2: Whether the Central Bureau of Investigation (for short ‘the CBI’) is empowered to conduct ‘fresh/re-investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code?” 11. Primarily, he has referred to the answer given to question no. Question No. 2: Whether the Central Bureau of Investigation (for short ‘the CBI’) is empowered to conduct ‘fresh/re-investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code?” 11. Primarily, he has referred to the answer given to question no. 2, pertaining to the rights provided to the High Court under section 482 of Cr.P.C. for issuing a direction of the reinvestigation, because it is not a field covered under section 173 of the Cr.P.C. This Court is of the opinion that in case if paragraph 3 of the said judgment is taken into consideration, it was factually based upon a different issue altogether, where the issue pertains to the investigation, which was being carried by the Central Bureau of Investigation, primarily with regards to the assessment of the earning and the livelihood of the person working as a rickshaw puller, and that was a fact, which was required to be assessed by the CBI officials, from whom, he was working, and it was demanded often that he should join the militant camp in Jammu and Kashmir, to give the information with respect to the activities of the Intelligence Bureau. 12. If we further go into the factual aspect dealt with in paragraph 4 of the judgment of Vinay Tyagi (Supra), it was the action of the Delhi Police, which had resulted into the filing of the petition in the High Court of Delhi, whereby the prayer was made for a reinvestigation under the facts of the said case, which obviously had a very vital bearing as far as the militant act was concerned, and it was under those exceptional circumstances that the Court answered question no. 2, in paragraphs 16 and 18, of the said judgment, as to under what circumstances the reinvestigation could be permitted by the High Court, particularly in the circumstances of said which related to a very sensitive issue of national security. 13. 2, in paragraphs 16 and 18, of the said judgment, as to under what circumstances the reinvestigation could be permitted by the High Court, particularly in the circumstances of said which related to a very sensitive issue of national security. 13. This Court is in absolute disagreement with the argument extended by the learned counsel for the applicant that the aforesaid principle of exercising of the powers by the High Court for conducting a de novo investigation cannot be invariably applied even in those cases, where it relates to the offences, which are personal in nature, like the one at hand, where it is contended that the transcription and the conversation details were required to be considered by the Investigating Officer, prior to the submission of the charge-sheet against the present applicant. 14. This Court feels that the old principles of law have to be replaced with the new legal system and need of time, which is prevailing in the country, and pertaining to particularly the scope of the power of reinvestigation to be exercised by the High Court in the exercise of its power under section 482 of Cr.P.C. and that was an aspect dealt with by the Hon’ble Apex Court by an equal strength of Bench in the matters of Central Bureau of Investigation vs. Aryan Singh, 2023 SCC Online 379 and the Hon’ble Apex Court while dealing with the aforesaid matter in paragraph 10 of the said judgment has observed that even at the stage of the 482 Cr.P.C. where the Court has got its limited jurisdiction to be exercised, whether the High Court can conduct a pre trial or direct the reinvestigation into the matter, the Court has held that the High Court is not supposed to venture into issuing any directions to the trial court, which may amount to coming to a conclusion by the High Court by conducting a pre-trial after appreciation of the evidence, and to speculate upon the report submitted by the Investigating Officer with regards to the offence, which is being complained of, against the present applicant. The pre-trial is not the scope provided under section 482 of the Cr.P.C. 15. The pre-trial is not the scope provided under section 482 of the Cr.P.C. 15. This Court is of the view that while exercising powers under section 482 of Cr.P.C. irrespective of whatsoever the issue might have been, the High Court should be slow in issuing direction or exceeding the exercise of its jurisdiction under section 482 of Cr.P.C. by directing the court to reinvestigate into the matter, which entails an appreciation of the evidence by the High Court itself, under section 482 of Cr.P.C. because of the factor that reinvestigation is not the scope covered under the Cr.P.C. 16. Almost a similar view was taken by the Hon’ble Apex Court in yet another judgment reported in State of Odisha vs. Pratima Mohanty, 2021 SCC Online 1222 where the judgment of the Orissa High Court, as rendered in a C482 application, was the subject matter of the consideration before the Hon’ble Apex Court, and the Hon’ble Apex Court, in the said judgment, too, has observed that in any proceeding which is being held by the High Court under section 482 of the Cr.P.C. if the High Court is called upon to appreciate a fact or an evidence, which may have a bearing on the trial itself, the court should refrain itself from interfering into the jurisdiction under section 482 Cr.P.C. by avoiding scrutinizing an evidence to arrive at a conclusion as to whether the report submitted by the Investigating Officer, was justified or not. 17. In that view of the two ratios laid down by the Hon’ble Apex Court, the latest one that being of 2023, which have already dealt with above, and putting it in parlance with the argument extended by the learned counsel for the applicant, in the light of the judgment of Vinod Tyagi (Supra) that the High Court is the only avenue open for him for issuing direction of the reinvestigation, since the said judgment was based upon altogether a different set of facts as referred to in paragraph 2 and 3 of the said judgment as dealt with above, the conclusion of the paragraphs 16 and 18 of the said judgment will not be attracted to draw an exception to be applied in the instant case too for directing the Investigating Agency to conduct a reinvestigation. 18. 18. Thus, while dismissing this C482 application, it will be left open for the applicant to file an appropriate application under sub-section (8) of section 173 of CrPC for further investigation, if at all he is dissatisfied with the report submitted by the Investigating Officer in the proceedings of the investigation, which was being carried with respect to the allegations leveled in the FIR No. 33 of 2022, dated 28.04.2022. 19. Subject to the aforesaid exception, this Court declines to interfere in the C482 application. The same is accordingly dismissed.