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Smt. Kamladevi vs The State Of Madhya Pradesh Thr on 3 January, 2018

1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

Gwalior, Dated : 03.01.2018
Shri R.K. Shrivastava, counsel for the applicant.
Shri R.K. Awasthi, Public Prosecutor for the
respondents No.1 to 3/State.

This application under Section 482 of Cr.P.C. has been
filed seeking a direction to the respondent No.1 to 3 for
arresting the respondents No.4 to 7 and filing the charge
sheet in Crime No.105/2017 registered at Police Station
Dursada, District Datia for offence punishable under Sections
376D and 506 of IPC.

It is submitted by the counsel for the applicant that the
prosecutrix had lodged a report at Police Station Dursada,
District Datia on 27/10/2017 on the allegation that on
23/10/2017 at about 05:00 in the morning when she had
gone to the field of one Ballan Prajapati to attend the call of
nature, at that time with an evil intention the accused
persons namely (respondents No.4 to 7) Rajesh Yadav, Rahul
Yadav, Lokendra Yadav and Pawan Yadav caught hold the
prosecutrix and thereafter, Rahul put his hand on her mouth,
Pawan Yadav caught hold her legs, Lokendra Yadav caught
hold her hands and thereafter Rajesh committed rape on her.
At the time of leaving the spot, all four accused persons
threatened her that if she narrates the incident to anyone,
she will be killed. Due to gagging of her mouth she could not
raise alarm at the time of incident. Thereafter, she came to
her house and narrated the entire incident to her husband on
telephone because her husband had gone to the house of
her sister-in-law (Nanand) at Dangrapua. After return of his
husband, she also narrated the incident to her husband, jeth
2
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

and brother-in-law (Devar). On the basis of aforesaid
complaint, the police registered the FIR for offence
punishable under Sections 376-D and 506 of IPC but the
police has neither arrested the accused nor has concluded
the investigation so far.

So far as the prayer made by the applicant for issuing a
direction to the police to arrest the accused persons is
concerned, the same cannot be granted.

The Supreme Court in the case of D.
Venkatasubramaniam v. M.K. Mohan Krishnamachari
reported in (2009) 10 SCC 488 has held as under :-

”19. The High Court, within a period of
one month from the date of filing of the
petition, finally disposed of the same
observing that,
“it is obligatory on the part of the
respondent police to conduct
investigation in accordance with law,
including recording of statements from
witnesses, arrest, seizure of property,
perusal of various documents and filing
of chargesheet. It is also needless to
state that if any account is available
with the accused persons, or any
amount is in their possession and any
account is maintained in a nationalised
bank, it is obligatory on the part of the
respondent police to take all necessary
steps to safeguard the interest of the
aggrieved persons in this case”.
The Court accordingly directed the police to
expedite and complete the investigation
within six months from the date of receipt
of a copy of the order. The said order of the
High Court is impugned in these appeals.

* * * *

25. It is the statutory obligation and duty
3
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

of the police to investigate into the crime
and the courts normally ought not to
interfere and guide the investigating
agency as to in what manner the
investigation has to proceed. In M.C.

Abraham v. State of Maharashtra (2003) 2
SCC 649 this Court observed: (SCC pp.
657-58, para 14)
“14. … Section 41 of the Code of Criminal
Procedure provides for arrest by a police
officer without an order from a
Magistrate and without a warrant. The
section gives discretion to the police
officer who may, without an order from a
Magistrate and even without a warrant,
arrest any person in the situations
enumerated in that section. It is open to
him, in the course of investigation, to
arrest any person who has been
concerned with any cognizable offence or
against whom reasonable complaint has
been made or credible information has
been received, or a reasonable suspicion
exists of his having been so concerned.
Obviously, he is not expected to act in a
mechanical manner and in all cases to
arrest the accused as soon as the report
is lodged. In appropriate cases, after
some investigation, the investigating
officer may make up his mind as to
whether it is necessary to arrest the
accused person. At that stage the court
has no role to play. Since the power is
discretionary, a police officer is not
always bound to arrest an accused even
if the allegation against him is of having
committed a cognizable offence. Since an
arrest is in the nature of an
encroachment on the liberty of the
subject and does affect the reputation
and status of the citizen, the power has
to be cautiously exercised. It depends
inter alia upon the nature of the offence
4
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

alleged and the type of persons who are
accused of having committed the
cognizable offence. Obviously, the power
has to be exercised with caution and
circumspection.”

**** **********

31. The High Court, without recording
any reason whatsoever, directed the
police that it is obligatory on their part to
record statements from witnesses,
arrest, seizure of property and filing of
charge sheet. It is difficult to discern as
to how such directions resulting in far
reaching consequences could have been
issued by the High Court in exercise of its
jurisdiction under Section 482 of the
Code. The High Court interfered with the
investigation of crime which is within the
exclusive domain of the police by
virtually directing the police to
investigate the case from a particular
angle and take certain steps which the
police depending upon the evidence
collected and host of other circumstances
may or may not have attempted to take
any such steps in its discretion.

32. It is not necessary that every
investigation should result in arrest,
seizure of the property and ultimately in
filing of the charge sheet. The police, in
exercise of its statutory power coupled
with duty, upon investigation of a case,
may find that a case is made out
requiring it to file charge sheet or may
find that no case as such is made out. It
needs no reiteration that the jurisdiction
under Section 482 of the Code conferred
on the High Court has to be exercised
sparingly, carefully and with caution only
where such exercise is justified by the
test laid down in the provision itself.

33. Yet another aspect of the matter,
the appellants have not been impleaded
5
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

as party respondents in the criminal
petition in which the whole of the
allegations are levelled against them.
The High Court never thought it fit to put
the appellants on notice before issuing
appropriate directions to the police to
arrest, seize the property and file charge
sheet. This Court in Divine Retreat
Centre V. State of Kerala Ors. (2008) 3
SCC 542 observed: (SCC p.565, para 51)
“51……….We are concerned with
the question as to whether the High
Court could have passed a judicial
order directing investigation against
the appellant and its activities
without providing an opportunity of
being heard to it. The case on hand
is a case where the criminal law is
directed to be set in motion on the
basis of the allegations made in
anonymous petition filed in the High
Court. No judicial order can ever be
passed by any court without
providing a reasonable opportunity
of being heard to the person likely to
be affected by such order and
particularly when such (2008) 3 SCC
542 order results in drastic
consequences of affecting one’s own
reputation.”

(emphasis is of ours)

34. The High Court in the present case,
without realizing the consequences,
issued directions in a casual and
mechanical manner without hearing the
appellants. The impugned order is a
nullity and liable to be set aside only on
that score.

******* **********

36.The power under Section 482 of the
Code can be exercised by the High Court
either suo motu or on an application (i)
6
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

to secure the ends of justice; (ii) the
High Court may make such orders as
may be necessary to give effect to any
order under the Code; (iii) to prevent
abuse of the process of any Court. There
is no other ground on which the High
Court may exercise its inherent power.

37. In the present case, the High Court
did not record any reasons whatsoever
why and for what reasons, the matter
required its interference. The High Court
is not expected to make any casual
observations without having any regard
to the possible consequences that may
ensue from such observations.

Observations coming from the higher
Courts may have their own effect of
influencing the course of events and
process of law. For that reason, no
uncalled for observations are to be made
while disposing of the matters and that
too without hearing the persons likely to
be affected. The case on hand is itself a
classic illustration as to how such
observations could result in drastic and
consequences of far reaching in nature.
We wish to say no more.

******* *********

42. For the aforesaid reasons, we find it
difficult to sustain the impugned
judgment of the High Court. Leave
granted. The appeals are accordingly
allowed and the impugned order is set
aside. ”
Thus this Court cannot supervise the investigation and
giving a direction to arrest the accused and file the charge
sheet would certainly amount to supervising the
investigation.

Section 173(1) of Cr.P.C. reads as under :
“173. Report of police officer on
7
THE HIGH COURT OF MADHYA PRADESH
MCRC No.27833/2017
(Smt. Kamladevi vs. State of M.P. Ors.)

completion of investigation.– (1) Every
investigation under this Chapter shall be
completed without unnecessary delay.”
Thus, completion of investigation without unnecessary
delay is the mandate of the law. The Investigating Officer,
cannot keep the investigation pending, and he has to come
to a conclusion that whether any offence is made out or not?
It is obligatory on the part of the Investigating Officer, to
conclude the investigation, as early as possible, and to file
the final report (Closure report or charge sheet) without any
delay. Thus, this application is disposed of in the light of the
mandatory provision of Section 173(1) of Cr.P.C. and the
Investigating Officer is directed to conclude the investigation
as early as possible and to take necessary steps as required
under the law.

In case of any grievance, the applicant is free to make
an application to the Superintendent of Police, Gwalior which
shall be looked into in accordance with law.

With aforesaid observations, the application is finally
disposed of.

(G.S. Ahluwalia)
(alok) Judge

ALOK KUMAR
2018.01.04 10:15:42 +05’30’

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