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Johari Lal Meena S/O Shri Ramniwas … vs State Of Rajasthan Through Pp on 1 February, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 3829/2018

Johari Lal Meena S/o Shri Ramniwas Meena B/c Meena, R/o
Village Banddi, Post Paparda, Tehsil Nangal Rajavtan, District
Dausa, Raj.
—-Petitioner
Versus
1. State Of Rajasthan Through Pp, Jaipur
2. Smt. Ekta Meena W/o Shri Vijendra Meena, D/o Shri
Narayan Meena B/c Meena, Aged About 26 Years, R/o
House No.32, Chandra Shekhar Azad Colony, Outside
Gangapole Gate, Scheme No.3, Galta Gate, Jaipur, Raj.
—-Respondents

For Petitioner(s) : Mr. V.S. Badhwar
For Respondent(s) : Mr. V.S. Godara PP
Mr. Satyam Khandelwal for the
respondent no.2

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

-/Order/-

01/02/2019

The present petition has been filed under Section 482

Cr.P.C. seeking quashing of FIR No.117/2017 registered at Police

Station Mahila Thana, Jaipur City North for the offences under

Sections 498A, 406, 323, 354 IPC and Sections 3 and 4 of Dowry

Prohibition Act.

This Court on 13.7.2018 had passed the following

order:-

“Counsel for the petitioner has contended that son of the
petitioner is posted at Delhi in Income Tax Department. It is
stated that complainant daughter in law of the petitioner was
residing at Delhi with her husband.

Counsel for the petitioner has contended that petitioner is
posted as a teacher in District Dausa and it is submitted that
(2 of 7) [CRLMP-3829/2018]

son and daughter in law of the petitioner, were having a
separate residence and mess at Delhi and therefore, petitioner
had no occasion to interfere in their domestic affairs.

Counsel for the petitioner further submitted that twice the
Investigating Agency has come to conclusion that no offence
has been committed by the petitioner.

It is contended that now the investigation has been
assigned to third Investigating Officer. This court in S.B.
Criminal Misc. Petition No.1141/2018, Tara Chand
Sharma Anr. Vs State of Rajasthan Ors. had passed the
following order:-

“The present petition has been filed under
Section 482 Cr.P.C. praying that a direction be
issued to the respondent nos. 1 to 4 to conduct fair
and impartial investigation in case arising out of FIR
No.0161/2017 registered at Police Station
Jhotwara, Jaipur (West) for the offences under
Sections 420, 467, 468, 471 read with Section
120B IPC.

Number of petitions filed under Section 482
Cr.P.C. are listed before this Court. It has been
observed that without passing any detailed
speaking order, on drop of hat, or on the whim and
fancy of the supervisory officer, in the midst of
investigation, when it has reached at a sensitive
stage, investigating officer is changed. Change of
the horse midstream is not appreciated.
Supervisory officer ought to give reasons as to why
investigating officer is required to be changed.
Supervisory officer should examine the case diary
and taking note of the deficiencies in the
investigation should give guidance to the
investigating officer as to in which direction,
investigation ought to move.

In the present case in particular, no such
procedure was followed. When accused Tara Chand
Sharma approached D.C.P. (West), Jaipur, he
transferred the investigation to SHO, Harmada.

Later when complainant approached, D.C.P. (West),
Jaipur, he transferred the investigation to ACP,
Jhotwara. Everything should not be done due to the
approach made by complainant or accused as it will
show the police in poor light, especially when Jaipur
(3 of 7) [CRLMP-3829/2018]

Police with the limited infrastructure is performing a
yeoman’s job in the city, which is having numerous
cases pertaining to property dispute.

Property dispute always has a monetary
consideration and consequences. Supervisory
officer should be careful and cautious while
changing the investigation officer.

It has been noted that number of times,
inquiry or investigating officer has been changed.
Sometimes when accused has been found guilty, on
the asking of accused investigating officer or
inquiry officer has been changed sometimes when a
police officer has recommended that Final Report in
negative form be submitted on asking of
complainant investigating officer or inquiry officer is
changed. Due to change of investigating officer or
inquiry officer not only course of investigation
change but result too change sometimes totally
opposite to the earlier view. Similarly the next
officer who is assigned investigation or inquiry
formulate contrary view. How many time
investigation should be conducted, how many times
result of investigation should change, is something
on which higher officer i.e. Commissioner of Police
should ponder so that trust of the people in the
premier investigating agency is not lost. Again and
again if investigating officer or inquiry officer is
changed and consequently with the change of
officer, report also changes. This it itself lower the
image of the police and cause trust deficiet.

In the above context, this Court had asked
Mr. Sanjay Agarwal, Commissioner of Police, Jaipur
to remain present in the court.

Mr. Sanjay Agarwal, Commissioner of
Police, Jaipur has stated that until there are
compelling reasons, investigating officer shall not
be changed and if the investigating officer is to be
changed, a detailed speaking order will be passed
giving reasons, pointing out deficiencies in the
investigation and reasons shall be spelt as to why
investigating officer ought to be changed. He has
also assured this Court that in all pending
investigations, which are more than one year old,
(4 of 7) [CRLMP-3829/2018]

report of investigation shall be submitted within two
months after conclusion of investigation in the
concerned court of competent jurisdiction from the
receipt of certified copy of the order. He has
submitted that in case there are compelling
reasons, then only under the orders passed by him,
extension of time to conclude the investigation shall
be given beyond period of two months pertaining to
cases where investigation is more than one year
old. Mr. Sanjay Agarwal, Commissioner of Police,
Jaipur has very fairly submitted that investigation
ought to be prompt and swift so that alert police
officer is able to gather all evidence.

This court appreciate the statement made by
Mr. Sanjay Agarwal, Commissioner of Police, Jaipur.
There is no need to say that if investigating officer
is not alert and investigation is not conducted at
the earliest, notable leads will be lost and vital
pieces of evidence will wither away. Therefore, in
investigation, time is essence. Thus, based on the
statement made by Mr. Sanjay Agarwal,
Commissioner of Police, Jaipur, this Court issue
following directions:-

a) That no investigating officer shall be changed
until supervisory officer pass a detailed speaking
order.

b) That in case supervisory officer come to
conclusion that investigating officer is to be
changed, in the order to be passed, he shall point
out deficiencies in the investigation and also give
guidance to the officer to whom investigation is to
be transferred.

c) That in all pending cases in the Commissionerate
of Jaipur, where the investigation is one year old,
report of investigation shall be filed with the opinion
of the investigating officer in the competent court
within two months from receipt of certified copy of
this order. In case, same cannot be done, extension
of time to conclude the investigation shall only be
granted by Commissioner of Police by passing a
reasoned order.

So far as, present case is concerned, Mr.
Sanjay Agarwal, Commissioner of Police, Jaipur has
(5 of 7) [CRLMP-3829/2018]

assured this Court that he will transfer the
investigation of this case to his office and same
shall be conducted by an officer not below the rank
of Additional Superintendent of Police. He has
assured this Court that report of investigation along
with the opinion of the investigating officer shall be
submitted in the court of competent jurisdiction
within one month from receipt of certified copy of
the order.

In view of directions issued above, and
assurances given by Commissioner of Police, noted
as directions, the present petition is disposed of.

A copy of this order under the seal and
signature of the Court Master be handed over to
the learned Public Prosecutor for onward
transmission and necessary compliance.”
Mr. Prakash Thakuriya, ld. PP, is not in position to
acquaint this court as to why Investigating Officer was changed
and investigation for third time was assigned to another person.

Issue notice to the respondents for 31.07.2018.
Meanwhile, investigation with the third Investigating Officer
shall remain stayed.

Mr. Prakash Thakuriya, ld. PP, is directed to file an
affidavit of the Commissioner of Police, Jaipur, stating reasons
therein as to why Investigating Officer was changed.

Copy of this order be handed over to Mr. Prakash
Thakuriya, PP, under the seal and signature of Court Master for
onward transmission and necessary compliance.”

In pursuance of the aforesaid order, Commissioner of

Police has filed the affidavit. He has stated that the first

investigating officer was not able to complete the investigation

and due to administrative exigencies, the investigation of the case

was assigned to the second investigating officer and later on the

prayer made by the complainant the investigation was assigned to

gazetted police officer. The Commissioner of Police in his affidavit

has stated that no investigating officer came to conclusion that no

offence has been committed by the petitioner.

(6 of 7) [CRLMP-3829/2018]

Mr. V.S. Badhwar, learned counsel for the petitioner has

submitted that the petitioner was posted as Teacher at District

Dausa, whereas his son and daughter-in-law initially stayed at

Delhi and later at Gurgaon.

Mr. Satyam Khandelwal, learned counsel for the

respondent no.2 has denied this fact and has submitted that it is

specifically stated in the FIR that the complainant never

accompanied her husband at the place of posting and she was

staying with her father-in-law at Dausa. Learned counsel for the

respondent no.2 has submitted that it is one of the grievance of

the complainant that she was never permitted to join her husband

at the place of posting.

Learned counsel for the petitioner has contended that

son of the petitioner on 8.5.2017 filed a divorce petition levelling

allegations of cruelty and as a counter blast thereto, the impugned

FIR has been lodged.

I have heard the learned counsel for the parties.

Whether the complainant was residing at Dausa or with

her husband at Gurgaon or at Delhi, is a dispute question of fact

and same cannot be determined in a petition under Section 482

Cr.P.C., as the same requires evidence.

So far argument that the impugned FIR was lodged as

a counter blast to filing of divorce petition is concerned, it is a well

accepted fact that the Indian woman wait till last to save

marriage. It is only when it dawns upon woman that the marriage

cannot be saved, then only FIR is lodged. In the present case after

divorce petition was filed, respondent aggrieved wife was bound to

take recourse to lawful remedy available to her. Therefore, in a

matrimonial matters, filing of divorce petition or petition under
(7 of 7) [CRLMP-3829/2018]

Section 9 of Hindu Marriage Act cannot be taken into consideration

to construe the FIR was lodged as counter blast.

Consequently, there is no merit in the present petition,

therefore, the same is disposed of with liberty to the petitioner to

raise all arguments available to him before the trial court,

however, taking into consideration the relationship and age of the

petitioner and the fact that the petitioner has retired as a Teacher,

the personal appearance of the petitioner before the trial court is

exempted subject to the following conditions:-

a) That the petitioner shall file an undertaking before the
trial court that he shall appear before the trial court at the
time of framing of charges, recording of statement of the
accused under Section 313 Cr.P.C. and at the time of
delivery of the judgment.

b) That in the undertaking filed the petitioner shall
specifically state that any evidence recorded in his
absence, but in presence of his counsel, shall be binding
upon him.

c) That the accused petitioner shall also undertake to
appear before the trial court as and when called by the
trial Judge.

d) It is further ordered that upon appearance of the
petitioner before the trial court, the trial court shall accept
regular bail bonds of the petitioner alongwith bonds to be
furnished by the sureties and the personal regular bail
bonds furnished by the petitioner and bonds to be
furnished by the sureties shall enure during the pendency
of the trial.

(KANWALJIT SINGH AHLUWALIA),J

Mak/-

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