THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

HON’BLE SHRI JUSTICE RAJENDRA KUMAR SRIVASTAVA

M.Cr.C. No. 44428/2018

S.K. Shukla

Vs

The State of M.P. and Others

————————————————————————————
Shri D.K. Tripathi, learned counsel for petitioner.
Shri Sharad Singh Baghel, learned P.L. for respondents/State.
——————————————————————————————-
JUDGMENT

(19.03.2020)

Petitioner has filed this petition under Section 482 of

Cr.P.C. to expunge the adverse remark and direction given against

him by the learned Special Judge (POCSO), Teonthar District Rewa

in ST No. 59/18 dated 23.05.2016. He also requests to restrain the

authority from initiating the disciplinary proceeding against the

petitioner.

2. Prosecution case in short is that the petitioner was the

Investigating Officer in Crime No. 79/2018 registered at Police

Station Suhagi District Rewa for the offence punishable under

Sections 363, 366 of IPC and Section 3/4 of POCSO Act. On

23.05.2018, while considering the argument before framing the

charges, the learned trial Court found and observed that the

prosecutrix was minor. Her father has lodged the missing complaint

of her on which the offence under Sections 363 and 366 was

registered by the police. Thereafter, the prosecutrix appeared before
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the police station along with accused of the case and given her

statement that on the false pretext of marriage, the accused committed

rape upon her. The parents of the prosecutrix have given their consent

for medical examination of her but surprisingly the petitioner made it

write from prosecutrix that she does not want to perform her medical

test whereas no question of consent arises when she was minor and

her parents have given their consent already. The learned judge

observed that the petitioner did not register the offence of Section 376

of IPC whereas sufficient prima facie materials were available in the

case, moreover, he registered the case under the offence of Section

3/4 of POCSO Act along with Sections 363 and 366 of IPC which

cannot be registered in such manner. Therefore, the learned judge has

sent a copy of order to SP Rewa for informing about the erroneous

investigation made by the petitioner.

3. Learned counsel for the petitioner submits that the

learned Court below has passed the adverse remark against the

petitioner without giving any opportunity of hearing, hence, the

adverse remark deserves to be expunged. He submits that in the case,

the statement of prosecutrix under Section 161 of Cr.P.C. was

recorded by the lady police official on 27.03.2018 and the prosecutrix

did not say about the commission of rape. Further, in her statement

recorded under Section 164 of Cr.P.C., the prosecutrix did not allege

against the accused about rape. The petitioner tried to obtain consent

for MLC but the prosecutrix did not give the same, hence, MLC could

not be done. The learned Court below not only pass the adverse

remark against the petitioner but also compelled the authority to

initiate departmental inquiry against the petitioner. It is well settled
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principle of law that such type of remarks cannot be allowed to stand

as no opportunity of hearing was given to petitioner, this is against

the principle of natural justice. Therefore, the remark passed by the

Court below may be expunged and higher authority may be restrained

to initiate the disciplinary proceeding against the petitioner. In

support of his contention, he has relied the judgment of the Hon’ble

Apex Court as well as this High Court, same are mentioned herein

under:-

1. A.M. Matur Vs. Pramod Kumar Gupta reported
in (1990) 2 SCC 533.

2. State of MP Vs. Mohd. Nameem Khan reported
in AIR 1964 SC 703.

3. K.P. Singh Kushwaha Vs. State of MP reported
2005 (2) MPHT 423.

4. On the other hand, learned counsel for the State opposes

the submission of petitioner’s counsel and argued that the offence was

committed against the minor girl who is aged about 14 years and the

FIR was registered by the her father, the offence involved in the case

are serious in nature. He submits that while deciding the issue, the

Court below found that the investigating officer has not conducted the

medical examination of the prosecutrix on the ground of her refusal,

however, the parents of prosecutrix have given their consent in this

regard. Since, the prosecutrix is minor, her consent is immaterial. He

further argued that in her statement recorded under Section 161 of

Cr.P.C., the prosecutrix stated that accused committed rape upon her

twice to thrice and some blood were oozing from her private part

even then neither the offence of Section 376 of IPC was registered

against the accused by the petitioner nor conducted any medical

examination. The Court below has only communicated to SP about
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the negligence committed by the petitioner and no adverse remark has

been passed. Further, the Court below has also not directed to conduct

any departmental inquiry against the petitioner, the Court below

merely communicated aforesaid order just to bring the act of the

police officer in conducting investigation. Therefore, this petition

deserves to be dismissed.

5. Heard both the parties and perused the case diary.

6. On perusal of case diary, it appears that the petitioner is

SHO posted at police station Suhagi District Rewa and he has

conducted the investigation in Crime No. 79/2018 for the offence

punishable under Sections 363 and 366 of IPC and Section 3/4 of

POCSO Act. By the impugned order, the learned Court below has

observed the adverse remark of carelessness against the petitioner in

conducting the investigation of the case.

7. The adverse remark passed in the different paras of

impugned order are also herein quoted as under:-

“…………… ,slk izrhr gksrk gS fd foospd fdlh Hkh
rjg ls izdj.k essa /kkjk 376 ds varxZr dk;Zokgh ugh djuk pkgrs Fks
bl dkj.k mijksDr lHkh ,DljlkbZt dh x;h gS^^
^++——————————– blds vfrfjDr egRoiw.kZ rF; ;g gS fd
foospd }kjk bl U;k;ky; ds le{k Hkk-n-l- dh /kkjk 363] 366 ,oa
ikDlks ,DV dh /kkjk 3@4 ds varxZr vfHk;ksx i izLrqr dj fn;k
x;k tcfd /kkjk 363] 366 ds lkFk 3@4 ikDlks ,DV vkdf”kZr ugh
gksrk gSA ,slh fLFkfr esa foospd }kjk iqu% ykijokgh dh x;hA
^^—————————— tkucw dj Hkkjrh; naM lfgrk dh /kkjk
376 ls vfHk;qDr dks cpkus dk iz;kl fd;k x;k gSA^^

8. The aforesaid remarks were passed by the learned Court

below when it was found that when the prosecutrix was appeared in

the police station, she stated about commission of rape with her by

the accused, even also in her 161 statement but the petitioner has not

added the offence of Section 376 IPC. Further, even after taking the
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consent from her parents as she was minor, the petitioner has not

conducted the medical examination of her.

9. On perusal of the case diary, it shows that initially, on

the complaint of father of prosecutrix, the FIR was registered on

25.03.2018 for the offence punishable under Sections 363 and 366 of

IPC, thereafter the police has recorded the statement of prosecutrix

and other witnesses on 26.03.2018. On perusal of Statement of

prosecutrix under Section 161 of Cr.P.C., it appears that she stated

about the fact of intercourse by the accused. Although, on

28.03.2018, in the statement under Section 164 of Cr.P.C., the

prosecutrix did not allege about the rape against the accused. Further,

a consent letter of father of prosecutrix is also found annexed in the

case diary. It also shows from the case diary that on 27.03.2018 when

the prosecutrix was brought before the medical examiner, she did not

give her consent for the same. On 21.04.2018, the petitioner has

submitted the charge sheet before the Court under Section 363, 366 of

IPC and Section 3/4 of POCSO Act. The learned trial Court expressed

his dissatisfaction with the investigation conducted by the petitioner

saying that when the prosecutrix stated about the intercourse by the

accused, offecne of Section 376 IPC shoud have been added in the

case, further, when the prosecutrix was minor and her parents are

ready to perform her medical examination, same should be done

without any fault. The Court has also disagreed with the combination

of registered offence Section 3/4 of POCSO Act with the offence of

Section 363 and 366 of IPC. Prima facie, the view taken by the

learned trial Court seems to be correct.

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10. There is no doubt that the trial Court has authority to

inform the higher police authority about the faulty investigation made

by the investigation officer even with some adverse remark against

his conduct but to apply the principal of natural justice, it is necessary

to the Court to give an opportunity of hearing to the investigation

officer to explain under what circumstances, he did so. In this regard,

in the case of Manish Dixit and others Vs. State of Rajasthan

reported in AIR 2001 SC 93, the Hon’ble Apex Court has held has

under:-

43. Even those apart, this Court has repeatedly
cautioned that before any castigating remarks are
made by the court against any person, particularly
when such remarks could ensure serious consequences
on the future career of the person concerned, he
should have been given an opportunity of being heard
in the matter in respect of the proposed remarks or
strictures. Such an opportunity is the basic
requirement, for, otherwise the offending remarks
would be in violation of the principles of natural
justice……………”

11. It is well settled by the Hon’ble Apex court that

castigating remark made by Court against any person which are likely

to have adverse consequences on his future career of a person

concerned should not be made unless the person concerned has been

given an opportunity of hearing in the matter in respect of the

proposed remarks or strictures.

12. In the present case, it is true that the learned Court below

raised the finger on the investigation conducted by the petitioner. The

trial court observed that the petitioner investigated the matter with

carelessness whereas offence was serious in nature as same pertains

to minor prosecutrix. But, on perusal of impugned order, I do not find

any proceeding whereby the learned Court below gave any
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opportunity of hearing to the petitioner to explain the circumstances

under which the investigation got vitiated. Although, prima-facie

appears that the petitioner committed something undesirable but in

view of the principal of natural justice an opportunity to explain the

circumstances is the basic requirement and in the absence of the

same, passing the adverse remark should not be proper and

justifiable.

13. Accordingly, the adverse remark made by the Court

below as mentioned in para 7 are hereby expunged. So far as another

relief of restrain the authority from initiating the disciplinary

proceeding against the petitioner, in view of the fact that no direction

has been made by the trial Court in this regard, I do find any reason to

pass any order.

14. Accordingly, this petition is hereby dispose of.

(Rajendra Kumar Srivastava)
Judge
L.R.

Digitally signed by LALIT SINGH
RANA
Date: 2020.03.20 16:30:05 +05’30’