Gopal Prasad Shivhare vs Union Of India And Others

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

The present petition under Article 226 of the Constitution of India has been filed being aggrieved by the arbitrary action taken by the respondent No. 3, whereby the petitioner is being harassed for the act which has not been done by the present petitioner because of the fact that an FIR has been lodged against the petitioner on 05.07.2020 for offence registered under Section 363 of IPC, wherein the statement of the prosecutrix has also been recorded under Section 164 of Cr.P.C. wherein, she has not taken the name of the present petitioner. It is submitted that on 19.07.2020, the statement under Section 164 of Cr.P.C was recorded and no name of the petitioner was taken, but subsequently, on 28.07.2020, due to pressure exerted by the family members of the prosecutrix, the prosecutrix has given an application to the respondent No. 3 levelling false allegation against the present petitioner. It is argued that the offences under POCSO Act has been registered, despite of the fact that the prosecutrix is a major and date of birth is 10.04.2002 as per the school records. It is submitted that on earlier occasion also, the petitioner has been falsely implicated by registration of an FIR for offence under Section 376 of IPC, wherein the petitioner has been honorably acquitted. It is submitted that the petitioner had filed an application to the Superintendent of Police narrating all the facts accompanied with the documents stating that he has falsely been implicated in the Crime No. 249/2020 registered at Police Station Bairad, District Shivpuri. It is submitted that all the documents filed by the petitioner may be taken into consideration by the police authority in the course of the police investigation. The petitioner has relied upon the judgment passed by the Division Bench of this Court vide order dated 08.03.2017 in W.A.119/2017 (Jitendra Singh Narwariya Vs. State of M.P. and ors.), wherein the Division Bench has directed the concerning police authorities to consider the documents filed by the petitioner of that case in investigation. He has prayed for the following reliefs:-

"1. That, the respondents may kindly be directed to consider the representation filed by the petitioner as Annexure P/1 and be directed to consider all the necessary documents in the light of the order dated 08.03.2017 passed in W.A no. 119/2017.

That, the respondent may kindly be directed to conduct free and impartial/fair investigation and handed the same over to the Officer not below the rank of Deputy Superintendent of Police.

That, any other relief be granted in the interest of justice."

Per contra, State counsel has opposed the arguments advanced by the learned counsel for the petitioner and submitted that the investigation is pending in the matter and the petitioner without even applying anticipatory bail any of the Courts, has directly filed the present petition levelling the allegation against the police authorities that the investigation is not being properly done. It is submitted that on one hand the petitioner is not cooperating in the investigation and on the other hand he is levelling allegation against the police authorities regarding proper investigation. It is argued that the petitioner has stated that all the documents which have been collected by him may be taken into consideration by the authorities during investigation. It is submitted that the petitioner is required to apply for an anticipatory bail before concerning courts along with the relevant documents and get himself bailed out first then, thereafter he can raise an objection on the investigation by the police authorities, but as on date, the relief which have been claimed by the petitioner cannot be granted to him under Article 226 of the Constitution of India. He has prayed for dismissal of the petition.

Heard learned counsel for the parties and perused the documents on record.

From the perusal of the record, it is seen that the petitioner has been made an accused with respect to registration of offence under Section 363 of IPC at Crime No. 249/2020. The FIR was got registered on 05.07.2020 and till date the petitioner has remained absconded and not cooperated in the investigation. It is seen form the records that the investigation is still pending in the matter. After recovery of the prosecutrix, her statement was got recorded under Section 164 of Cr.P.C, wherein she has categorically stated against the present petitioner. As far as age of the prosecutrix is concerned, the arguments advanced by the petitioner with respect to applying of the whitener in the records of the school cannot be considered at this stage in this writ petition. The aforesaid disputed questions of facts and the police authorities can very well look into all such arguments during investigation itself. It seen that the petitioner has not even applied for anticipatory bail and has directly filed the present petition before this Court seeking a relief for directing the police authorities to consider all the documents which are being produced by him before the authorities. The respondents-police authorities are duty bound to investigate the matter which they are doing so. The petitioner is not cooperated in the investigation on one hand and on the other hand he is indirectly levelling the allegation against the police authorities regarding their fairness in the investigation. As the petitioner is not even applied for anticipatory bail and has directly filed the writ petition before this Court. In such facts and circumstances of the case, this Court does not deem it appropriate to entertain the writ petition directing the respondents/authorities.

Accordingly, the petition is hereby dismissed. However, liberty is extended to the petitioner to apply for anticipatory bail and thereafter approach the concerning police authorities for redressal of his grievances.