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2023 DIGILAW 630 (UTT)

Gulnaz v. State of Uttarakhand

2023-11-09

RAKESH THAPLIYAL

body2023
JUDGMENT : By the instant petition, preferred under Section 482 of Cr.P.C., the applicant is challenging the order dated 30.10.2023 passed by the Special Judge, NDPS, Rudrapur, District Udham Singh Nagar in Misc. Criminal Application No. 369 of 2023 State vs. Mohd. Arman in connection with FIR No. 415 of 2023 for the offences punishable under Sections 8, 21 and 60 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’), whereby the application, preferred under Section 156(3) and 172(2) of Cr.P.C. were rejected. 2. Brief facts of the present case are that one S.I. Anil Joshi lodged an FIR being FIR No. 415 of 2023 under Sections 8, 21, and 60 of the NDPS Act against one Mohd. Arman on 08.10.2023 at Police Station Jaspur, District – Udham Singh Nagar, as 07.15 grams of smack was recovered from Mohd. Arman. As per contents of the FIR, on being caught, he stated that he sells smack for a lady named Gulnaaz (applicant). Thereafter, the name of the applicant was also included in the FIR as one of the accused. 3. The applicant challenged the said FIR before this Court by way of Criminal Writ Petition No. 1478 of 2023 Gulnaz vs. State of Uttarakhand and another, which was dismissed by this Court on 20.10.2023 by observing as follows:- “7. Mere statement of co-accused is definitely a weak kind of evidence. But, then, at the stage of recording of the FIR, when the investigation is underway, the Investigating Officer would test the credibility of the statement of the co-accused, as to whether the petitioner, in any manner, is involved in the case or not. He may have occasion to see the bank transactions or call details, or any other such material, so as to verify the statement of the co-accused. 8. The FIR definitely discloses commission of offences. Smack, according to the FIR, has been recovered from the co-accused. Insofar as the role of the petitioner is concerned, as stated, it would find scrutiny during investigation or trial, as the case may be. At this stage, the FIR may not be quashed. Therefore, this Court is of the view that there is no reason to make any interference. Accordingly, the petition deserves to be dismissed at the stage of admission itself. 9. The petition is dismissed in limine.” 4. At this stage, the FIR may not be quashed. Therefore, this Court is of the view that there is no reason to make any interference. Accordingly, the petition deserves to be dismissed at the stage of admission itself. 9. The petition is dismissed in limine.” 4. Thereafter, the present applicant preferred an Application under Section 156(3) before the Special Judge, NDPS, Rudrapur, District Udham Singh Nagar for monitoring of the investigation of FIR No. 415 of 2023, where the applicant is one of the accused. 5. Learned counsel for the applicant submits that except the statement given by the main accused, namely Mohd. Arman, there is nothing on record against the present applicant on the basis of which she can be linked with the aforesaid crime and the statement and the confessional statement, as made by the main accused, is a weak type of evidence, which cannot be relied upon. He further submits that since the applicant is aggrieved, she was entitled to move an application under Section 156(3) of Cr.P.C. praying therein for monitoring of the investigation. Hence, for monitoring of the investigation, she moved an Application under Section 156(3) of Cr.P.C., which was dismissed by the Special Judge, NDPS Act, Udham Singh Nagar vide order dated 30.10.2023. Being aggrieved by the said order, the applicant has approached this Court. 6. In support of his argument, learned counsel for the applicant has placed reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Sakri Vasu vs. State of U.P. and others (2008) 2 SCC 409 , particularly on Para 27 of the said judgment, wherein the Hon’ble Supreme Court has observed as under:- “27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC 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. The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC 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. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.” 7. On the other hand, learned State Counsel relied on the judgment rendered by the Hon’ble Supreme Court in the case of Jagjeet Singh and another vs. Ashish Mishra alias Monu and others (2022) 9 SCC 321 , in which the Hon’ble Supreme Court has elaborated the word “victim” and, thereafter, learned State Counsel submits that in view of the said judgment, being an accused, the present applicant cannot be treated as a victim. 8. I have also perused both the judgments relied upon by learned counsel for the applicant as well as by learned State Counsel. I am not convinced with the argument of the learned counsel for the applicant that the remedy for monitoring of the investigation is available to an accused. That remedy is only available to the complainant or victim but not for a person who is involved in the crime as an accused. 9. Similarly, the Hon’ble Supreme Court in the case of Union of India vs. W.N. Chadha, 1993 Supp (4) SCC 260 has held that the accused has no right to participate or have any say in the investigation, as the Criminal Procedure Code is silent on this issue. The accused’s involvement is not required until the filing of the final report or issuance of process, even in cases initiated through a complaint. While certain provisions empower the Magistrate to grant a hearing opportunity in specific circumstances, the overall scope for the accused’s participation during the investigation is limited. For ready reference, the relevant paragraph of the aforesaid judgment is reproduced herein below:- “92. More so, the accused has no right to have any say as regards the manner and method of investigation. While certain provisions empower the Magistrate to grant a hearing opportunity in specific circumstances, the overall scope for the accused’s participation during the investigation is limited. For ready reference, the relevant paragraph of the aforesaid judgment is reproduced herein below:- “92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.” 10. The provision of Section 156(3) of Cr.P.C. empowers a Magistrate to direct the police to investigate a cognizable offence. If someone files an Application under Section 156(3), the Magistrate, on satisfaction, can order the police to start an investigation. This Section is often invoked by the complainant when the police refuse to register an FIR or fail to conduct a proper investigation. In such cases, the complainant can seek the Magistrate’s intervention to ensure a fair and thorough inquiry into the alleged offence. However, this Section, as I find, does not give any right to an accused to file application seeking monitoring of the investigation, a privilege has only been given to the complainant or the victim to facilitate an effective investigation. 11. However, this Section, as I find, does not give any right to an accused to file application seeking monitoring of the investigation, a privilege has only been given to the complainant or the victim to facilitate an effective investigation. 11. Since the present applicant is an accused and facing trial, this Court is of the view that she is not entitled to move an application under Section 156(3) of Cr.P.C. seeking a proper and fair investigation, particularly for monitoring the investigation. The applicant has several other remedies available under the provisions of the Cr.P.C. Either she can move an application seeking discharge or she can also challenge the proceeding by preferring a petition under Section 482 Cr.P.C. 12. Providing such an opportunity to the accused would not only amount to interference with investigation or trial whatever it is, but it will cause unnecessarily delay in the trial also. 13. In view of this, the present C-482 petition has no force and is meritless as well as completely misconceived and is dismissed accordingly.