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Fojiya vs State Of Haryana And Ors on 6 February, 2019

114
IN THE HIGH COURT OF PUNJAB HARYANA AT
CHANDIGARH

CRM-M-12348 of 2018.
Decided on:- February 06, 2019.

Fojiya.
………Petitioner.
Versus

State of Haryana and others
………Respondents.

CORAM: HON’BLE MR. JUSTICE HARI PAL VERMA.

*****

Present:- Mr. Shiva Khurmi, Advocate
for the petitioner.

Ms. Mahima Yashpal, AAG, Haryana.

Mr. Sandeep Kotla, Advocate
for accused Shahdab.

HARI PAL VERMA, J.

The petitioner has filed present petition under Section 482 Cr.PC

for quashing of the order dated 11.12.2017 passed by learned Judicial

Magistrate 1st Class, Panipat, whereby the application moved by the petitioner

for re-investigation in FIR No.15 dated 15.10.2015 under Sections 376-D,

452 and 506 read with Section 34 IPC and Section 8 of the Protection of

Children from Sexual Offences Act, 2012 registered at Women Police

Station, Panipat, was dismissed.

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Prayer has also been made for issuance of a direction to official

respondent No.2 to get the matter further investigated by some independent

agency.

Briefly stated, the petitioner-prosecutrix, aged about 18 years and

the accused persons are staying in the same locality. Accused Shahdab son of

Mehmood and Afsar son of Mohammad are residents of Mohalla Khel Kalan,

Tehsil Kariana, District Shamli (U.P.), and presently residing near Sanjay

Chowk, Panipat. Accused Shahdab had a bad eye on the prosecutrix and used

to tease her when she used to go to school. He also used to threat her to

kidnap and for this reason, the parents of the prosecutrix discontinued her

studies. On 15.09.2015, accused Shahdab entered the house of the prosecutrix

and tried to molest her. When the prosecutrix made a complaint to her mother,

the family members of the accused came to their house and gave an assurance

that in future he will not repeat such mistake. On 14.10.2015, the prosecutrix

along with her mother had gone to Civil Hospital, Panipat to take medicine

and were standing inside the hospital. When the mother of prosecutrix had

gone for the prescription slip, at about 12.00 noon, the accused persons came

in a Swift Dezire (white colour car) and tried to pull the prosecutrix in the car

while pressing her mouth. However, on raising noise by the prosecutrix,

people gathered there. The accused left the place, but with a threat to kidnap

and to kill her in future. Accordingly, FIR No.15 dated 15.10.2015 under

Sections 452 and 506 read with Section 34 IPC and Section 8 of the

Protection of Children from Sexual Offences Act, 2012 was registered at

Women Police Station, Panipat against accused Shahdab and Afsar. Later on,

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on the basis of statement of the prosecutrix under Section 164 Cr.P.C., the

offence under Section 376-D was also added in the case.

The translated version of the FIR in question, as mentioned in

paragraph No.6 of the present petition reads as under:

“To, the SHO, Women Police Station, Panipat. Subject :
For keeping bad eye on the applicant and physically teasing her.
Sir, it is requested that I Fojiya daughter of Vakil, aged 15 years,
am resident of Mohalla Khel Kalan, Tehsil Kairana, District
Shamli, Uttar Pradesh. Against 1. Shahdab son of Mehmood,
Afsar son of Mohammad, residents of Mohalla Khel Kalan,
Tehsil Kariana, District Shamli Uttar Pradesh at present Imam
Sahib, Near Sanjay Chowk, Panipat and other accused persons.
Sir, the applicant makes the following prayer that the applicant
Fojiya daughter of Vakil, aged 15 years, resident of Mohalla
Khel Kalan, Tehsil Kariana, District Shamli Uttar Pradesh, who
is law abiding minor girl. The abovesaid accused persons are
staying in the neighbourhood of the applicant, who are goons
like persons. 2. That accused No.1 is keeping a bad eye on the
applicant for the last long time, who was teasing the applicant
when she goes and come back from the school and was extending
threat to kidnap due to which the family members of the
applicant got her study stopped midway and made her sit at
home. 3. That on 15.09.2015, accused No.1 forcibly entered in
the house of the applicant and started teasing the applicant.
When in regard to the above matter, the applicant makes a
compliant to her mother, then the family members of the accused
came at home and by giving an assurance that in future accused
No.1 will not repeated this mistake tendered apology and went
away. 4. That on 14.10.2015, the applicant had come to the Civil
Hospital, Panipat, alongwith her mother for taking medicine.

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When the applicant was standing in the Civil Hospital and the
mother of the applicant had gone inside for getting the slip
issued, then at the same time at about 12 noon, the abovesaid
accused persons came while sitting in a white swift car and on
coming, by gagging the mouth of the applicant, started forcibly
pushing her in their vehicle. On lodging protest and raising
noise by the applicant, few people gathered nearby and on
hearing the noise, mother of the applicant also came on the spot.
Thereafter, abovesaid accused persons ran away from the spot
by extending threat of kidnapping her and killing her in future on
getting appropriate chance. Sir, the accused persons, who are
goon type of persons, can give shape to any incident against the
applicant at any time. Therefore, your goodself is requested that
while keeping the abovesaid facts in mind, strict legal action be
taken against accused No.1 for teasing applicant and against the
accused persons for making an attempt to kidnap the applicant
and for extending threat to the applicant to kill, by registering a
case. I shall be thankful.”

The petitioner has further stated that under the pressure and

intervention of the brotherhood, Panchayat and respectables, the matter

between the parties was settled and an affidavit of the petitioner was taken

and handed over to the police. Accordingly, proceedings in the said FIR were

stopped and Nikah between the petitioner and accused Shahdab was

performed on 26.10.2015. At that time, even a specific affidavit was given by

accused Shahdab that since the petitioner was minor at that time, she would

continue to stay with her parents and the moment, she will attain majority, it

will be obligatory on him to keep her as a wife with him. Thereafter, on

03.08.2017, accused Shahdab and his family members have taken the

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petitioner to her matrimonial home. On 09.08.2017, the accused persons with

common intention gave beatings to the petitioner and also administered

poison to her so as to kill her. In this regard, a complaint was given by the

petitioner to the police on the basis of which FIR No.752 dated 12.08.2017

under Sections 328 and 498-A read with Section 34 IPC was registered at

Police Station Chandni Bagh, Panipat. The petitioner was told by the accused

persons that they have got performed Nikah of accused Shahdab under a

conspiracy so as to get the case of rape dismissed and now they have achieved

their goal and the petitioner cannot do anything against them.

The petitioner along with her family members and respectables

approached the local police with a request to take action against the accused

persons, but no action was taken against them. The petitioner has also made a

representation dated 01.09.2017 to respondent No.2 i.e. Director General of

Police, Haryana, but of no use. Another FIR No.1161/2017 under Sections

148, 149, 354, 506 IPC etc. was got registered against Rehna etc. Thereafter,

the petitioner moved an application before learned Judicial Magistrate 1st

Class, Panipat seeking re-investigation of the case, but the same was

dismissed vide impugned order dated 11.12.2017. Aggrieved against this

order dated 11.12.2017, petitioner has filed the present petition with the

prayer mentioned in paragraph No.1 above.

Learned counsel for the petitioner has argued that the petitioner

and her family members as well as respectable persons of the locality

approached the local police with a request to take action against the accused

persons, but no action is taken against the accused. Rather, pressure is being

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put on her to settle the issue as the accused are influential persons. The

accused, in spite of committing heinous crime, are roaming freely and, rather,

threatening the petitioner and her family members to kill them in case the

matter is not sorted out. Since the police has not conducted fair investigation,

the petitioner moved an application for re-investigation of the case, but the

same was dismissed by learned Judicial Magistrate 1st Class, Panipat vide

impugned order dated 11.12.2017. In case the matter is not re-investigated by

the police, the petitioner would suffer adversely. The accused persons have

spoiled the life of the petitioner and they are roaming freely and extending

threat to her.

Mr. Sandeep Kotla, Advocate appearing for accused Shahdab has

argued that the bare perusal of the FIR in question reflects that there is no

allegation of rape, if any, committed upon the prosecutrix. The police has

duly investigated the matter and prepared a cancellation report as the

allegations were not found substantiated by any evidence. Still, vide

impugned order dated 11.12.2017 passed by learned Magistrate, liberty has

been granted to the petitioner to file private complaint or protest petition in

this case if aggrieved with the police report i.e. cancellation report. He has

produced the certified copy of judgment dated 04.07.2018 passed by learned

Additional Chief Judicial Magistrate, Panipat, whereby accused Shadab has

been acquitted of the charge framed against him in case bearing FIR No.752

dated 12.08.2017 under Sections 323 and 498-A IPC registered at Police

Station Chandni Bagh, Panipat, which is taken on record.

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He has also produced photocopies of the affidavits dated

28.10.2015 furnished by the petitioner and her mother Rani stating therein

that they do not want to proceed further in the FIR No.15 dated 15.10.2015

under Sections 376-D, 452 and 506 read with Section 34 IPC and Section 8 of

the Protection of Children from Sexual Offences Act, 2012 registered at

Women Police Station, Panipat and no rape was committed with the

prosecutrix, which are taken on record.

Learned State counsel has argued that in FIR No.15 dated

15.10.2015 under Sections 376-D, 452 and 506 read with Section 34 IPC and

Section 8 of the Protection of Children from Sexual Offences Act, 2012

registered at Women Police Station, Panipat, the police has filed cancellation

report in the case as the prosecutrix has stated that rape has not been

committed upon her and she does not want to proceed further in this case.

I have heard learned counsel for the parties.

It is not disputed that FIR No.15 dated 15.10.2015 under

Sections 376-D, 452 and 506 read with Section 34 IPC and Section 8 of the

Protection of Children from Sexual Offences Act, 2012 was registered at

Women Police Station, Panipat at the instance of the petitioner. The said FIR

was investigated by the police and a cancellation report was filed. However,

the petitioner being complainant moved an application to learned Magistrate

seeking re-investigation in the case, which was dismissed vide impugned

order dated 11.12.2017, which is subject matter of challenge in the present

petition.

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Perusal of the certified copy of judgment dated 04.07.2018

passed by learned Additional Chief Judicial Magistrate, Panipat, shows that

accused Shadab has been acquitted of the charges framed against him in case

bearing FIR No.752 dated 12.08.2017 under Sections 323 and 498-A IPC

registered at Police Station Chandni Bagh, Panipat. The said FIR was

registered at the instance of the petitioner, but the accused was acquitted for

the reason that the petitioner being the complainant while appearing in the

witness box as PW1 did not support the prosecution case and was, rather,

declared hostile. Similarly, her mother Farzane @ Rani as PW2 also did not

support the prosecution case and was declared hostile.

In the present FIR No.15 dated 15.10.2015, which was registered

at the behest of the petitioner, no allegation of rape was made by the

petitioner, and as such, the FIR was registered under Sections 452 and 506

read with Section 34 IPC and Section 8 of the Protection of Children from

Sexual Offences Act, 2012 at Women Police Station, Panipat. However, it is

the case of the petitioner that later on, Section 376-D was added in the case on

the basis of statement of the prosecutrix under Section 164 Cr.P.C.

Perusal of the copy of affidavit dated 28.10.2015 furnished by

mother of the petitioner shows that she has mentioned in the said affidavit that

the aforesaid FIR was registered by the petitioner as she was misguided by

someone and the deponent (mother of the prosecutrix) and the prosecutrix are

fully satisfied and they do not want any further action in the case. She has no

objection if the FIR is cancelled. Similar affidavit has also been furnished by

the petitioner. Thus, the police has prepared a cancellation report against

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which the petitioner has an appropriate remedy to invoke, including to file a

protest petition. However, instead of filing a protest petition, she moved an

application for re-investigation of the case, which has been declined by

learned Magistrate vide order dated 11.12.2017.

In Rama Chaudhary Versus State of Bihar 2009(2) RCR

(Criminal) 570, it has been held by Hon’ble Supreme Court that further

investigation is the continuation of the earlier investigation and not a fresh

investigation or re-investigation has to be started ab initio wiping out the

earlier investigation altogether. The Apex Court has also held that though

further investigation is permissible, but re-investigation is prohibited. The

relevant observations as mentioned in paragraphs No.7 to 13 of the said

judgment are reproduced as under:

“7. Sub-section (1) of Section 173 of Criminal Procedure
Code makes it clear that every investigation shall be completed
without unnecessary delay. Sub-section (2) mandates that as
soon as the investigation is completed, the officer in charge of
the police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in the
form prescribed by the State Government mentioning the name of
the parties, nature of information, name of the persons who
appear to be acquainted with the circumstances of the case and
further particulars such as the name of the offences that have
been committed, arrest of the accused and details about his
release with or without sureties. Among other sub-sections, we
are very much concerned about sub- section (8) which reads as
under:

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“(8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer
in charge of the police station obtains further evidence,
oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the
form prescribed; and the provisions of sub-sections (2) to
(6) shall, as far as may be, apply in relation to such report
or reports as they apply in relation to a report forwarded
under sub-section (2).”

8. A mere reading of the above provision makes it clear that
irrespective of report under sub-section (2) forwarded to the
Magistrate, if the officer in-charge of the police station obtains
further evidence, it is incumbent on his part to forward the same
to the Magistrate with a further report with regard to such
evidence in the form prescribed.

9. The above said provision also makes it clear that further
investigation is permissible, however, reinvestigation is
prohibited. The law does not mandate taking of prior permission
from the Magistrate for further investigation. Carrying out a
further investigation even after filing of the charge-sheet is a
statutory right of the police. Reinvestigation without prior
permission is prohibited. On the other hand, further investigation
is permissible.

10. From a plain reading of sub-section (2) and sub-section
(8) of Section 173, it is evident that even after submission of
police report under sub-section (2) on completion of
investigation, the police has a right to “further” investigation
under sub-section (8) of Section 173 but not “fresh investigation”

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or “reinvestigation”. The meaning of “Further” is additional;
more; or supplemental. “Further” investigation, therefore, is the
continuation of the earlier investigation and not a fresh
investigation or reinvestigation to be started ab initio wiping out
the earlier investigation altogether. Sub- section (8) of Section
173 clearly envisages that on completion of further investigation,
the investigating agency has to forward to the Magistrate a
“further” report and not fresh report regarding the “further”
evidence obtained during such investigation.

11. As observed in Hasanbhai Valibhai Qureshi vs. State of
Gujarat and Others, (2004) 5 SCC 347, the prime consideration
for further investigation is to arrive at the truth and do real and
substantial justice. The hands of investigating agency for further
investigation should not be tied down on the ground of mere
delay. In other words, the mere fact that there may be further
delay in concluding the trial should not stand in the way of
further investigation if that would help the court in arriving at
the truth and do real and substantial as well as effective justice.

12. If we consider the above legal principles, the order dated
19.02.2008 of the trial Court summoning the witnesses named in
the supplementary charge-sheet cannot be faulted with. It is true
that after enquiry and investigation charges were framed on
11.03.2004 and thereafter in the course of trial about 21
witnesses were examined. In the meantime, Police submitted
supplementary charge-sheet with certain new materials and on
the basis of supplementary charge- sheet, the prosecution filed
an application on 12.01.2008 in a pending Sessions Trial No. 63
of 2004 to the trial Court for summoning the persons named in
the charge-sheet for their examination as prosecution witnesses.
On a careful perusal of the application, the trial Court, by order

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dated 19.02.2008, allowed the same and has summoned those
witnesses named in the supplementary charge-sheet.

13. The law does not mandate taking prior permission from
the Magistrate for further investigation. It is settled law that
carrying out further investigation even after filing of the charge-
sheet is a statutory right of the Police. [vide K. Chandrasekhar
vs. State of Kerala and Others, (1998) 5 SCC 223.] The material
collected in further investigation cannot be rejected only because
it has been filed at the stage of trial. The facts and circumstances
show that the trial Court is fully justified to summon witnesses
examined in the course of further investigation. It is also clear
from Section 231 of the Criminal Procedure Code that the
prosecution is entitled to produce any person as witness even
though such person is not named in the earlier charge-sheet. All
those relevant aspects have been taken note of by the learned
Magistrate while summoning the witnesses based on
supplementary charge-sheet. This was correctly appreciated by
the High Court by rightly rejecting the revision. We fully agree
with the said conclusion.”

Therefore, having regard to the law laid down in Rama

Chaudhary’s case (supra) and considering the fact that in FIR No.15 dated

15.10.2015, there is no allegation of rape coupled with the fact that in another

FIR No.752 dated 12.08.2017, the prosecutrix and her mother had not

supported their own case, rather, they were declared hostile as well as the fact

that the prosecutrix and her mother have furnished their affidavits dated

28.10.2015 that they do not want to proceed further in FIR No.15 dated

15.10.2015 as no rape was ever committed by the accused, which resulted

into cancellation of the said FIR, this Court finds that there is no illegality in

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the impugned order dated 11.12.2017 passed by learned Judicial Magistrate

1st Class, Panipat.

Accordingly, the present petition, being devoid of any merit, is

dismissed. However, still it is made clear that the petitioner shall be at liberty

to avail their remedy as available under law including the liberty granted by

the learned trial Court in order dated 11.12.2017.

(HARI PAL VERMA)
February 06, 2019 JUDGE
Yag Dutt

Whether speaking/reasoned: Yes

Whether Reportable: No

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