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MCRC No. 5394/2017

HIGH COURT OF MADHYA PRADESH
MCRC No.5394/2017
Rajveer Singh vs. State of MP. Anr.
Gwalior, dtd. 16/05/2018
Shri V.D. Sharma, Counsel for the applicant.
Shri Vishal Mishra, Additional Advocate General with
Shri Prakhar Dhengula, Public Prosecutor for
respondent No. 1/State.

Mr. Kamal Maurya, Additional Superintendent of
Police/Investigating Officer of the case, is present in
person along with original case diary.

A permission to file the reply on behalf of the
Superintendent of Police, Shivpuri as well as on behalf of
Pradeep Walter was taken by the Public Prosecutor in the
morning and a copy of the same has been made available
to the Court. However, still it is not known that whether
the said reply has been filed by the State or not.

Subodh Toppo, ASI, Police Station Karera, District
Shivpuri has sent his reply to the Principal Registrar of this
Court, which is also taken on record.

Shri Kamal Maurya was asked about the steps which
he has taken in the matter. It was replied by him that on
8/5/2018, he received the case diary with an instruction to
investigate the matter. On 9th and 10th of May, 2018, he
was in the Supreme Court of India in connection with
some other case, therefore, he could not go through the
case diary. He came back to Shivpuri on 10 th of May, 2018.
It is further submitted by Mr. Kamal Maurya that since it is
a new case, therefore, he wants to talk to the
complainant.

This submission of thinking of having talk with the
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complainant has only one meaning and that is, the
Investigating Officer wants to record the supplementary
statement of the complainant. The incident is alleged to
have taken place in the year 2006. However, with great
difficulties and only after the intervention of the Inspector
General of Police, Gwalior range, Gwalior, the FIR was
lodged in the year 2011, against the applicant and co-
accused Raghvendra Shukla. As already pointed out by
this Court in the previous order that even after the
direction given by the Inspector General of Police, Gwalior
Range, Gwalior, the FIR was not lodged, but every attempt
was made by the police authorities to ignore the order
passed by the Inspector General of Police, Gwalior Range,
Gwalior because after receiving instructions from the
Inspector General of Police, Gwalior Range, Gwalior, the
Superintendent of Police, Gwalior sought further opinion
from the DPO, Shivpuri as to whether any offence can be
registered or not. However, in the nutshell, the FIR was
lodged in the year 2011. It appears that immediately after
the FIR was lodged, the applicant Rajveer Singh Gurjar
pressurized the complainant and obtained an affidavit
from the complainant, in his favor. As already pointed out
in the previous order-sheets that Rajveer Singh Gurjar had
filed the petition before this Court for quashment of the
FIR and in that petition, he moved an application for
quashment of the proceedings on the basis of compromise
and the said application was allowed and the criminal
proceedings were quashed by this Court by order dated
27/2/2013 passed in MCRC No. 8802/2011. As already
pointed out in the previous order that, the order of this
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Court was challenged by the State Government itself, by
filing a SLP (Cri) No. 5266/2014. The said SLP was finally
disposed of by the Supreme Court by order dated
25/4/2016 passed in Criminal Appeal No. 446/2016. It is
not out of place to mention here that the State itself was
aggrieved by the order of this Court by which the criminal
proceedings were quashed against Rajveer Singh Gurjar
on the basis of compromise. Thus, one thing is clear that
at the first instance, the Inspector General of Police,
Gwalior Range, Gwalior, was of the view that the matter
requires investigation after registration of FIR and at the
second instance, when the FIR was quashed on the basis
of compromise, then the State itself was of the view that it
is a serious matter warranting investigation and the FIR
against Rajveer Singh Gurjar should not have been
quashed on the basis of compromise, and that is why, the
S.L.P. was filed before the Supreme Court.

Be that as it may be.

The crux of the matter is that the order dated
27/2/2013 passed by a Co-ordinate Bench of this Court in
MCRC No. 8802/2011 was quashed by the Supreme Court
by order dated 25/4/2016 and it was specifically held that
considering the allegations and counter allegations, the
matter should not have been quashed on the basis of
compromise, as it requires investigation. The copy of the
order of the Supreme Court was received by Police Station
Karera, District Shivpuri on 6/6/16 and 22/6/2016, but
merely by keeping the same in the case diary, nothing was
done by the Investigating Officer. Thus, it is clear that the
Investigating Officer had no respect for the Supreme Court
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of India and he thought that he can conveniently sit over
the order of the Supreme Court.

However, unfortunate aspect of the matter is that it
is not the end of the manipulation.

Co-accused Raghvendra Shukla had also filed a
petition under Section 482 of CrPC for quashment of the
FIR. A Co-ordinate Bench of this Court had passed an
interim order dated 25/11/2011 in MCRC No. 8358/2011
and directed that “no coercive action” shall be taken
against the petitioner (co-accused Raghvendra Shukla) till
the next date of hearing. Initially, the Investigating Officer
conveniently interpreted the words “no coercive action” as
stay on the investigation. However, it appears that the
Police Station Karera, District Shivpuri was itself in doubt
that whether “no coercive action” would mean stay of
investigation or not, therefore, a legal opinion was sought
from the office of the Additional Advocate General and the
office of the Additional Advocate General, in its turn, by its
opinion dated 12/7/2014, specifically clarified that the
words “no coercive action” does not mean stay of
investigation and the Investigating Officer shall carry on
the investigation in regard to Crime No. 332/2011. Thus, if
the Investigating Officer had any doubt with regard to the
interpretation of words “no coercive action”, then it was
clarified by the office of the Additional Advocate General
by its legal opinion dated 12/7/2014. This legal opinion is
also a part of case diary which clearly means that at least
in the month of July, 2014, the Investigating Officer was
aware of the fact that he has to proceed further with the
investigation, but still nothing was done.

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Unfortunately, it is also not the end of the matter.
When MCRC No. 8358/2011 was taken up for
hearing, this Court found that neither the response of the
State was on record, nor the case diary was available,
therefore, an opportunity was given to the State to obtain
the case diary and the interim order granted on the earlier
occasion was extended. As already pointed out and it is
being observed, that in every case, only a part of the
photocopy of the case diary is being sent by the police
stations of nine Districts, which fall within the jurisdiction
of this Bench and the original diary is never sent by the
police station. A response was also filed by the
Investigating Officer in MCRC No. 8358/2011 and, in that
response, it was mentioned that because of the interim
order of “no coercive action” against the applicant (co-
accused Raghvendra Shukla), the Investigating Officer is
not in a position to arrest him as a result of which, the
charge-sheet could not be filed so far. Thus, it is clear that
the Investigating Officer was clear in his mind that the
evidence, which has been collected so far against the
applicant as well as against co-accused Raghvendra
Shukla, is sufficient for filing the charge-sheet.

However, that is also not the end of the matter.
A reply was filed by the State in MCRC No.
8358/2011 on 6/2/2017 and although the order of the
Supreme Court was already with the S.H.O., Police Station
Karera, Distt. Shivpuri, but still the Investigating Officer,
very conveniently did not bring the order of the Supreme
Court to the knowledge of this Court and he kept mum in
that regard. At the time of the hearing of MCRC No.
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8358/2011, it was very vehemently argued that since the
complainant had compromised with the present applicant
Rajveer Singh Gurjar, therefore, Raghvendra Shukla
should also be given the same benefit as the FIR against
Rajveer Singh Gurjar has already been quashed by a Co-
ordinate Bench of this Court by order dated 27/2/2013
passed in MCRC No. 8802/2011. Although, this Court was
not aware of the order dated 25/4/2016 passed by the
Supreme Court in Criminal appeal No. 446/2016, but still
considering the allegations made against co-accused
Raghvendra Shukla, the submission made by the counsel
for the co-accused for extending the same benefit to him
which was extended by a co-ordinate bench of this Court
by order dated 27/2/2013 passed in MCRC No. 8802/2011
was declined and it was specifically held that since Hakim
Singh, the person to whom the gunshot injury was caused,
was not made an accused in the charge-sheet filed against
the dacoits, therefore, the police itself was of the view that
Hakim Singh was an innocent person and under such
circumstances, the investigation cannot be quashed. Shri
Bhagwanlal, who was the investigating officer, at the
relevant time and had filed the response, with his affidavit,
has also filed his reply in this proceedings, to the effect,
that the order of the Supreme Court was never given to
him by his superior police officers and that is why, it was
not mentioned in the reply.

It was found that the order dated 10/4/2017 passed
in MCRC No. 8358/2011 was not in the case diary. It was
verified from the registry of this Court and it was found
that the order dated 10/4/2017 was already dispatched to
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the SHO, Police Station Karera, District Shivpuri by
registered post and this Court by order dated 16/4/2018
held that in view of Section 27 of General Clauses Act, the
delivery of the registered post can be presumed. This
Court by order dated 7/5/2018 had clearly observed that
although the presumption raised under Section 27 of the
General Clauses Act is a rebuttable presumption, but no
effort has been made by the State to rebut the same and,
therefore, it was held that the order dated 10/4/2017
passed by this Court in MCRC No. 8358/2011 was received
by the SHO, Police Station Karera and with an intention to
give undue advantage to the accused person, the same
was not kept deliberately in the case diary.

On 7/5/2018, the Superintendent of Police, Shivpuri
had appeared in person and a detailed order was passed in
his presence. The Superintendent of Police, Shivpuri had
made a submission that the investigation shall be handed
over to the Additional Superintendent of Police and,
therefore, an impression was created by the
Superintendent of Police Shivpuri in the mind of this Court
that now there is a possibility of independent and honest
investigation. However, still the facts of the case depict a
very sorry state of affairs, at least in district Shivpuri.

Today, when Mr. Kamal Maurya, Additional
Superintendent of Police, Shivpuri, to whom the
investigation has been handed over, appeared before this
Court, he made a specific statement that he wants to have
a talk with the complainant. When a specific question was
put to him as to why he wants to meet the complainant,
then he stated that he wants to visit the place of
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occurrence. The reply given by Mr. Kamal Maurya,
Additional Superintendent of Police, cannot be accepted
because the incident took place in the year 2006 and
visiting the place of occurrence after 12 years is of no use.
However, there may be another reason for having talk with
the complainant. As already pointed, Rajveer Singh Gurjar
had filed an affidavit of the complainant before this Court
for quashment of the FIR on the basis of compromise and
the FIR against Rajveer Singh Gurjar was also quashed on
the basis of compromise. Mr. Kamal Maurya was asked to
read the statement of Hakim Singh which was recorded by
the Investigating Officer under Section 161 of CrPC and he
has read that statement in the open court and in that
statement, there is a specific allegation that the gunshot
was fired by Raghvendra Shukla. When a specific
statement of the complainant under Section 161 of CrPC
was already in the case diary, then decision of meeting
with the complainant after 12 years of incident and that
too when the present applicant Rajveer Singh Gurjar has
already won over the complainant, by pressurizing him,
clearly shows that the attempt of the Investigating Officer
was to record his supplementary statement about the
compromise between the complainant, Rajveer Singh
Gurjar and Raghvendra Shukla and then to proceed
further.

Unfortunately, at every step, every police officer has
tried to flout the law and order of this country. Initially,
the instructions given by the Inspector General of Police,
Gwalior Range, Gwalior under Section 36 of CrPC were
flouted by the Superintendent of Police, Shivpuri by
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seeking opinion from DPO, Shivpuri and, thereafter, when
a specific finding was given by the Supreme Court, by
holding that the matter is a serious one and it requires
investigation, then for the last more than two years, the
police authorities are conveniently sitting over the said
order. It is unfortunate that when this Court, while
deciding the petition filed by Raghvendra Shukla under
Section 482 of CrPC has considered the factual aspect of
the matter, has found that the allegations are serious and
the investigation cannot be quashed, even then the said
order was deliberately kept outside the case diary.

It is submitted by Mr. Kamal Maurya that yesterday
he was told by SDO (P) Karera, District Shivpuri that he is
in possession of order dated 10/4/2017 passed by this
Court in MCRC No. 8358/2011 and therefore, he would
make the said order available. Fortunately, Mr. B.P. Tiwari,
SDO (P), Karera, District Shivpuri is also present in the
Court. He was asked that when he got the copy of the
order dated 10/4/2017 passed in MCRC No. 8358/2011,
then it was replied by him that the same was in the case
diary. As this Court had already seen the case diary on
7/5/2018 and it was found that the case diary did not
contain the order dated 10/4/2017 passed in MCRC No.
8358/2011, therefore, it is clear that the order dated
10/4/2017 passed by this Court in MCRC No. 8358/2011
was already in possession of SDO (P) Karera, District
Shivpuri. This Court by order dated 7/5/2018, had already
held that the copy of the order dated 10/4/2017 passed in
MCRC No. 8358/2011 was already served on the SHO,
Police Station Karera, District Shivpuri and with an
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intention to give undue advantage to the accused persons,
the same was deliberately kept out of the case diary. The
submission made by the SDO (P) Karera District Shivpuri
that he is already in possession of the order dated
10/4/2017 passed by this Court in MCRC No. 8358/2011
fortifies the findings given by this Court with regard to the
receipt of the order dated 10/4/2017 passed in MCRC No.
8358/2011 and that, the same was deliberately kept out
of the case diary.

There appears to be another disturbing fact of the
case. On 7-5-2018, Shri Prakhar Dhengula, Public
Prosecutor, while verifying the page numbers of the case
diary had found that pages from serial no. 212 to 221
were missing from the case diary and accordingly it was
observed by this Court as under :

……………. Shri Prakhar Dhengula
was also requested to verify that whether
the entire case diary was properly
numbered or not. After going through the
case diary, it was submitted by Shri Prakhar
Dhengula that after page No.211 the next
page is numbered as 222 instead of 212. It
is further submitted by Shri Prakhar
Dhengula that it is not clear that whether
these 10 pages were earlier taken out by
the Investigating Officer from the case
diary or the incorrect numbering was done
by mistake. However, in order to avoid
further manipulation, he has corrected the
numbering of the case diary and page
No.222 is renumbered as 212 and so on
and the case diary contains total 420
pages. Since the diary is required for
investigation of the matter, therefore, it was
directed that the photocopy of the entire
case diary may be prepared in the presence
of Shri V.D. Sharma and Shri Prakhar
Dhengula and each and every pages should
be attested by the Superintendent of Police,
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District Shivpuri and Shri Pradeep Walter,
SHO, P.S. Karera, District Shivpuri so that
the photocopy of the case diary may be
kept in a sealed cover in this proceeding
and the original case dairy may be
returned.

Today, Shri B.P. Tiwari, S.D.O. (P), Karera, Distt.

Shivpuri has made a statement that order dated 10-4-
2017 passed in M.Cr.C. No. 8358/2011, was in the case
diary, although on 7-5-2018, it was found that the order
dated 10-4-2017 passed in M.Cr.C. No. 8358/2011, was
not in the case diary. However, on 7-5-2018, Shri Prakhar
Dhengula, Public Prosecutor had found that total 10 pages,
bearing page no. 212 to 221, were missing from the case
diary. Order dated 10-4-2017 passed in M.Cr.C. No.
8358/2011 runs in 5 pages. The remaining 5 pages may
be the envelop, covering letters etc. Thus, it appears that
the police authorities had deliberately removed the order
dated 10-4-2017 from the case diary, therefore, they did
not try to rebut the presumption drawn by this Court,
under Section 27 General Clauses Act, regarding delivery
of copy of order dated 10-4-2017. Thus, it appears that
at every step, the police authorities are playing fraud with
this Court.

It is submitted by Shri Vishal Mishra, Additional
Advocate General, that when the instructions were sought
from the officer of Additional Advocate General by the
police officers during pendency of this petition, then they
were told about the order dated 10/4/2017 passed by this
Court in MCRC No. 8358/2011. Mr. Kamal Maurya,
Additional Superintendent of Police, has fairly conceded
before this Court that he had gone through the order
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dated 7/5/2018 passed by this Court in this case. That
order runs in as many as 35 pages and in that order, there
is a specific reference to the order dated 10/4/2017
passed in MCRC No. 8358/2011. Unfortunately, again with
deliberate intention, the said order has not been kept in
the case diary. The order dated 10/4/2017, passed in
MCRC No. 8358/2011 was passed after considering the
factual aspects of the matter, therefore, the police
authorities must be finding themselves in a difficult
position to get over the said order and thus, they found it
more convenient to keep that order out of the case diary
so that they may try to mold the investigation with an
ulterior motive, in order, to give undue advantage to the
accused persons and that too, contrary to the observations
and findings given by the Supreme Court as well as by the
High Court. This Court is conscious of the fact that the
Courts should not normally supervise the investigation,
however, the police authorities of District Shivpuri have
created such a situation where this Court is left with no
option but to consider the conduct of each and every
person minutely.

A Division Bench of the Allahabad High Court, in the case
of In Re: An unfortunate Incident In Unnao Of Rape
And Murder Published in Various Newspaper Vs.
State of U.P., by its order dated 13-4-2018 has
observed as under:-

“There can be no quarrel or two opinion on
the proposition that is being advanced by
learned Advocate General, the question
that arises in the given facts of the case,
whether it is open to the law enforcing
agency to let the accused move freely and
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give him further opportunity to tamper
evidence and witnesses with impunity. The
incident that was reported way back on 17
August 2017 came to be registered on 12
April 2018, that too after the death of the
father of the prosecutrix. We are informed
by learned Advocate General that few
police personnels and doctors have been
suspended on the basis of SIT report. This
further supports the contentions urged by
Mr. Gopal Chaturvedi that immediate arrest
of Kuldeep Singh is necessary. We are
further informed that the police personnels
and doctors who tried to tamper with the
evidence and acted under the influence of
Kuldeep Singh have been placed under
suspension. That being so, it was submitted
that a lot of damage has already been done
and to avoid further damage, the
immediate arrest of the accused in
particular Kuldeep Singh is must.

Chapter V of CrPC deals with the
arrest of persons. Section 41 is the main
Section, providing for situations when
police may arrest without warrant. Section
42 specifies yet another situation where a
police officer can arrest a person. We are,
however, not concerned with the said
provision for the case before us. Reading of
the provisions of Sections 41 and 42,
however, show the width of the power of
arrest vested in police officers. Sub-section
(1) of Section 41, in particular clauses (a)
and (b), cover the situations where a
person who is “concerned in any cognizable
offence”; a person against whom a
reasonable complaint is made that he is
“concerned in a cognizable offence”; a
person against whom “credible information”
is received, showing that he is “concerned
in any cognizable offence” and a person
who is reasonably suspected of being
“concerned any cognizable offence”. The
generality of language and the consequent
wide discretion vesting in police officers is,
indeed, enormous.

It is true that, often, the wide
discretion vesting in the police officers is
either abused or misused or the power of
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arrest is wrongly and illegally exercised.
The efforts of the courts, and in particular
of the Supreme Court over a period of time,
therefore, has been to circumscribe the
vast discretionary power vested by law in
police by imposing several safeguards and
to regulate it by laying down numerous
guidelines and by subjecting the said power
to several conditionalities. The effort
throughout has been to prevent its abuse
while leaving it free to discharge the
functions entrusted to the police. In
Joginder Kumar (supra), the powers of
arrest and its exercise has been dealt with
at length. It would be appropriate to refer
to certain observations in the judgment. In
that case, it was alleged that the SHO had
detained the petitioner for five days,
implicating him falsely in some criminal
case. When the Supreme Court had issued
notice, the SSP alongwith the petitioner
appeared before Court and stated that the
petitioner was not in detention at all and
that his help was taken for detecting some
cases relating to abduction and the
petitioner was helpful in cooperating with
the police. While dealing with this case, the
Supreme Court referred to the Third Report
of the National Police Commission and
reproduced the suggestions made therein,
which read as under:-

“An arrest during the investigation
of a cognizable case may be
considered justified in one or other
of the following circumstances:

(i) The case involves a
grave offence like murder,
dacoity, robbery, rape etc., and
it is necessary to arrest the
accused and bring his
movements under restraint to
infuse confidence among the
terror-stricken victims.

(ii) The accused is likely to
abscond and evade the processes
of law.

(iii) The accused is given to
violent behaviour and is likely to
commit further offences unless his
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movements are brought under
restraint.

(iv) The accused is a habitual
offender and unless kept in custody
he is likely to commit similar
offences again.

It would be desirable to insist
through departmental instructions that a
police officer making an arrest should
also record in the case diary the reasons
for making the arrest, thereby clarifying
his conformity to the specified
guidelines….”

(emphasis supplied)

After quoting the suggestions as
above, the Supreme Court in the said
paragraph, observed thus:

“… No arrest can be made because it
is lawful for the police officer to do
so. The existence of the power to
arrest is one thing. The justification
for the exercise of it is quite another.
The Police Officer must be able to
justify the arrest apart from his
power to do so. Arrest and detention
in police lock-up of a person can
cause incalculable harm to the
reputation and self- esteem of a
person. No arrest can be made in a
routine manner on a mere allegation
of commission of an offence made
against a person. It would be
prudent for a police officer in the
interest of protection of the
constitutional rights of a citizen and
perhaps in his own interest that no
arrest should be made without a
reasonable satisfaction reached after
some investigation as to the
genuineness and bona fides of a
complaint and a reasonable belief
both as to the person’s complicity
and even so as to the need to effect
arrest. Denying a person of his
liberty is a serious matter. The
recommendations of the Police
Commission merely reflect the
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constitutional concomitants of the
fundamental right to personal liberty
and freedom. A person is not liable
to arrest merely on the suspicion of
complicity in an offence. There must
be some reasonable justification in
the opinion of the officer effecting
the arrest that such arrest is
necessary and justified. Except in
heinous offences, an arrest must be
avoided if a police officer issues
notice to person to attend the
Station House and not to leave the
Station without permission would
do.”

From bare perusal of the above
observations made in the light of the
suggestions made in the Third Report of the
National Police Commission, it appears to
us that an arrest during the investigation of
a cognizable case is justified where the
case involves a grave offence like murder,
dacoity, robbery, rape etc., in order to bring
the movements of the accused under
restraint to infuse confidence among the
terror-stricken victims. As observed earlier,
the power of arrest is enormous and has
also been the very source of abuse and
misuse. Abuse and misuse of the power to
arrest, in our opinion, does not only mean
causing arrest without a reasonable
satisfaction reached after some
investigation as to the genuineness and
bona fides of a complainant and reasonable
belief both as to the person’s complicity
and need to effect arrest, but would also
mean not exercising the discretion by
effecting of arrest even in cases involving
grave offences like murder and rape/gang
rape of minor, as in the present case. In
other words, there is every possibility that
police officer/investigating agency may
abuse and misuse the power by not
arresting an accused, may be to help the
accused, he being an influential person, in
a case where arrest is necessary to avoid
further damage to the case or to prevent
accused from tampering with the evidence
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or terrorizing the witnesses and also to
instill confidence not only amongst the
terror-stricken victims but even the people
at large. The judgments of the Supreme
Court relied upon, would show that in all
those cases, the arrest was effected
illegally, wrongly and without any
justification. But in a case, like the case in
hand, where it is clear that accused have
done everything that is possible to create
terror in minds of victims, to tamper with
evidence and kill the father of the
prosecutrix, in the presence and with the
connivance of the police. The Supreme
Court, time and again, has taken
cognizance of cases against politicians,
elected Members of Legislative Assembly or
the Parliament, their involvement in
criminal cases and delay in disposal of
cases pending against them. The present
case, perhaps, is also one of such cases
which, so far, has not been handled fairly,
properly and honestly. We are of the
opinion that at least now, the police should
act promptly and not give an impression
that they are trying to shield the accused
persons, by following procedure unknown
to the criminal jurisprudence,”

On 7/5/2018, a submission was made by the
Superintendent of Police, Shivpuri, that the present
applicant Rajveer Singh Gurjar and co-accused
Raghvendra Shukla shall be placed under suspension and
a reply has been filed by the Superintendent of Police,
Shivpuri pointing out that these two persons have been
placed under suspension, however, there is no reference
as to whether these two persons, against whom an offence
under Section 307 of IPC, has been registered and which
is a non-bailable offence, will be arrested or not? In the
morning session, a prayer was made by the office of the
Additional Advocate General, for pass over because the
reply was under preparation and at that time, it was
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enquired by this Court that although the accused persons
might have been placed under suspension, but whether
the arrest of the accused in a non-bailable offence is
required or not and whether the police can avoid arrest of
the police personals, of the rank of Constable and A.S.I.,
facing charge of committing offence under Section 307 of
IPC and whether these police personnel are above the law
and why the police immediately tries to arrest an ordinary
citizen of India for a non-bailable offence? It was clearly
pointed out by this Court that if the police authorities are
of the view that a person, who is facing allegations for
committing a non-bailable offence, is not required to be
arrested merely because he is a police personnel, then
why the same benefit should not be extended to all the
citizens of India.

At 2:30 pm, the Additional Superintendent of Police,
who is investigating the matter, has appeared and
submitted that now an attempt is being made to arrest the
accused persons. Unfortunately, when this Court asked the
Additional Advocate General that if the police is of the
view that in a non-bailable offence, an accused, who is a
police personnel, is not required to be arrested, then why
the same benefit should not be extended to all the citizens
of India, only then it appears that because of the
intervention of the office of the Additional Advocate
General, the investigating officer has started making an
attempt to arrest the accused. This Court is also conscious
of the fact that directing the investigating officer to arrest
an accused may amount to supervision, however, the
situation which has been created by the police authorities
19
MCRC No. 5394/2017

by showing utter disregard to the Supreme Court of India
as well as to this Court and the manner in which the police
authorities are trying to mislead the court by suppressing
the fact and the manner in which the investigating officer
is trying to record the supplementary statement of the
complainant specifically when the present applicant has
already pressurized the complainant and has come
forward with an affidavit of the complainant and had got
the proceedings quashed on the basis of compromise, this
Court is of the considered opinion that a situation has
been created where this Court is required to look into the
case diary, although for limited purpose that whether the
investigation is being done in a free and fair manner or
not?

It is well established principle of law that the
prosecution is under obligation to give full protection to
the victim and the witnesses, so that they can depose
truth before the Trial Court, fearlessly. However, in the
present case, immediately after the F.I.R. was lodged, the
applicant Rajveer Singh Gurjar, who is a police personal,
obtained the affidavit of compromise from the
complainant. Thus, it is clear that, by adopting any mean,
Rajveer Singh Gurjar, must have pressurized the
complainant, to enter into a compromise. Where the duty
of the prosecution is to provide adequate security to the
witnesses, but unfortunately, in the present case, the
police personals were involved in pressurizing the victim to
enter into a compromise. And now the attempt on the
part of the Investigating Officer, of having a talk with the
victim, clearly indicates, that the police authorities are still
20
MCRC No. 5394/2017

trying their level best to pressurize the victim, so that he
may not narrate the truth and on the basis of the
supplementary statement, an undue advantage may be
extended to the accused police personals.

Unfortunately, at every step, the conduct of the SHO,
Police Station Karera, District Shivpuri and the
Investigating Officers was found, contrary to law as well as
contrary to their statutory duties. When the police
authorities are not ready to act in accordance with law,
then this Court cannot keep its eyes closed.

It was found that Mr. Maurya is not only having
the original case diary with him, but he is also having two
files with him. On the instructions of the Court, those files
were shown to the Court. One file was with regard to the
FIR lodged by Rajveer Singh Gurjar, in which the fact of
sustaining gunshot injury by Hakim Singh was mentioned
and that fact was already taken into consideration by this
Court in its order dated 10/4/2017 passed in MCRC No.
8358/2011. Although S.D.O.(P), Karera, Distt. Shivpuri, is
in possession of the order dated 10-4-2017, passed by
this Court, in M.Cr.C. No. 8358/2011, but not only the said
order has not been kept in the Police Case Diary, but at
the same time, the Additional Superintendent of
Police/investigating Officer, is expressing his ignorance
about the said order. Thus, in the considered opinion of
this Court, it would not be safe to leave the investigation
in the hands of the Police of Distt. Shivpuri. Thus, the
original case diary as well as two folders, which Mr. Kamal
Maurya was having with him, are sealed in the presence of
Mr. Kamal Maurya, Additional Superintendent of Police,
21
MCRC No. 5394/2017

Shri Vishal Mishra, Additional Advocate General, Shri V.D.
Sharma, Advocate and Shri Prakhar Dhengula, Public
Prosecutor. The original case diary as well as two
folders,which were brought by Mr. Kamal Maurya, are
returned back, to Mr. Kamal Maurya, in two sealed
envelops, with a specific direction that any further
manipulation in the case diary would be dealt with strictly
and Mr. Kamal Maurya is directed to keep both the sealed
envelopes with him, in safe custody till, further order is
passed.

Under these circumstances, this Court is of the prima
facie opinion that the police of District Shivpuri may not be
allowed to continue with the investigation. Accordingly it
is directed that till further orders, the investigation
in the matter shall remain stayed.

Since, Mr. Maurya has made a submission that the
police parties have already been dispatched to arrest these
two accused persons, therefore, the police of District
Shivpuri is allowed only to arrest the accused
persons and to produce them before the Magistrate,
but they are restrained from doing any other
investigation or even touching the case diary. Even
the Police of District Shivpuri, shall not pray for
Police Remand, till further orders. It is made clear
that if the Magistrate/Sessions Court, is of the view
that they are required to look into the case diary,
then, in the presence of Shri Kamal Maurya, the case
diary may be opened, but it is directed, that the case
diary shall be re-sealed in the presence of Shri
Kamal Mourya, Additional S.P., Shivpuri.

22

MCRC No. 5394/2017

Mr. Subodh Toppo has filed his reply and in that
reply, it is mentioned that after his transfer, the Sub-
Inspector Bhagwan Lal had handed over the case diary of
Crime No. 331/2011 to Head Constable Mahendra Singh
Chouhan and, thereafter, the said case diary was handed
over to Mr. Ajay Jat for investigation purposes.

Let the notices be issued to Mr. Mahendra Singh
Chouhan and Mr. Ajay Jat, who at present is posted at
Police Station Kolaras, District Shivpuri to show cause as
to why action should not be taken against them.

Let necessary reply be filed within a week.
Issue notice to B.P. Tiwari, SDO (P) Karera as to why
the order dated 10/4/2017 passed in MCRC No.
8358/2011 was not kept in the case diary and why he kept
the said order with him and why it should not be viewed
as an attempt to give undue advantage to the accused
persons, as it has already been observed by this Court
that from the very beginning the police officers are trying
to save the police personnel contrary to the instructions of
their superior officer as well as contrary to the
observations made by the Supreme Court as well as by
the High Court.

Let reply be filed within fifteen days.
At this stage, it is submitted by Shri Vishal Mishra,
Additional Advocate General, that once the compromise
was entered into and the order of the High Court was set
aside by the Supreme Court and the matter was remanded
back and investigation was directed by the Supreme
Court, then authorities are required to complete the
investigation and it is mandatory on their part. They
23
MCRC No. 5394/2017

should have done it from the very beginning since the
order of the Supreme Court was brought to the knowledge
of the authorities, but that was not done. After order
dated 10/4/2017, this Court had also clarified the
situation, including the factual aspects. After passing of
this order, definitely steps should have been taken by the
Investigating Officer to arrest the accused, to complete
the investigation and file the charge-sheet, therefore, so
far as the negligence on the part of erring officers is
concerned, that aspect should be left open to the senior
officers of police to deal with.

List this case on 18/6/2018 and on that day,
further course of action shall be considered and the
Additional Advocate General is requested to address that
under the facts and circumstances of the case, whether
the matter should be handed over to the Central Bureau of
Investigation or whether the local police of District
Shivpuri can be allowed to continue with the investigation
or whether the Superintendent of Police of some other
District not falling within the jurisdiction of Gwalior range
should be asked to investigate the matter.

The Additional Advocate General is also requested to
address the Court, on the question, that by making an
attempt to shield and protect the accused persons,
whether different police officers, who have handled the
case diary at different point of time, have committed any
criminal offence or not and whether their prosecution
should be ordered or not?

Since, the investigation has already been stayed and
Mr. Kamal Maurya has already been directed not to touch
24
MCRC No. 5394/2017

the case diary, therefore, the presence of Mr. Kamal
Maurya would not be required although the State would be
obliged to file the reply that whether the accused persons
have been arrested or not.

It is further directed, that since, Rajveer Singh
Gurjar and Raghvendra Shukla have already been placed
under suspension, therefore, their suspension shall not be
revoked without seeking permission from this Court.

List this case on 18/6/2018.

(G. S. Ahluwalia)
AKS Judge

Digitally signed by ALOK KUMAR
Date: 2018.05.17 15:01:30
+05’30’