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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CRM-M-12348 of 2018 -4-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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CRM-M-12348 of 2018 -10-“(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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CRM-M-12348 of 2018 -11-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 order11 of 13
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CRM-M-12348 of 2018 -12-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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