Sarnam Singh Kushwaha vs State of Madhya Pradesh and Others

R.D. Shukla, J.

The petitioner challenges the prosecution of him self and respondents Nos. 2 to 6 under Sections 395, 396, 302, 147, 148, 149 of Indian Penal Code for having committed murder of Narendrasingh s/o Madansingh, Ushadevi w/o Narendrasingh,'' Mandansingh s/o Onkarsingh, Devendrasingh s/o Madansingh, Surendrasingh s/o Madansingh, Mahendra- singh @ Bantu s/o Madansingh and Manoramabai w/o Madansingh.

It is alleged that the crime against them was registered on the basis of Dehati Nalishi in Police Station Kayatha and after investigation on the basis of Crime No. 73/90 a challan under sections referred above of Indian Penal Code and Sections 25 read with 26 of Arms Act was filed against them before the Magistrate, which has been committed in due course and was registered as Sessions Trial. The Sessions Trial thereafter has been transferred from District Ujjain to District Dewas and is pending before the Sessions Judge, Dewas as Sessions Trial No. 233/90.

The contention of learned counsel for the petitioner is that accused Parmalsingh lodged a report before Police-station Kayatha vide Ex. P/4 and has explained the whole incident but the same has not been investigated. The report of the petitioner was prior to report (Ex. P/2) lodged by Gulabsingh on 1-7-1990 at 11.30 A. M. at Sumrakheda and since no action has been taken on the basis of the report lodged by the petitioner, the whole investigation is vitiated and it should be quashed.

As against it learned counsel for the State has submitted that the challan against the petitioner and respondents Nos. 2 to 6 has been filed after due investigation. It has been committed and now it is pending for trial before the Court of Session and this petition has been filed with an ulterior motive of delaying the trial.

Learned counsel for the petitioner has relied on a case reported in Kashmeri Devi Vs. Delhi Administration and Another, Kashmeri Devi v. Delhi Administration and Anr. and submitted that if the investigation is biased and unfair the same can be quashed and some other superior authority can be directed to investigate the case.

We are in agreement with the law propounded therein but the facts of that case are absolutely different. There was a death in Police-custody. It was alleged that deceased died owing to injuries caused due to beatings of the police. Earlier a case u/s 302 was registered by the Investigating Officer. Thereafter it was converted into Section 304, Indian Penal Code and was further converted u/s 323 read with 34 of Indian Penal Code. There was a case against the Police Officers and it was found that the investigating officer was siding the police officers involved in the crime and it was for that reason that the case was being converted into minor sections. Under these circumstances their Lordships of the Supreme Court quashed the investigation and directed the investigation to be done by C.B.I.

In this case the Police-Officer reached the spot after receiving some information about the incident. Gulabsingh made a report at the place of the incident. Thereafter inquest report of seven dead bodies was prepared. The autopsy on those dead bodies was also conducted. It was confirmed that the death was by gun-shot injuries. Then the eye-witnesses of the incident were examined. They corroborated the story as disclosed by Gulabsingh and after due enquiry the investigating officer has filed a challan and the same is now pending before the Sessions Judge for trial.

Chapter XII of the Code of Criminal Procedure deals with the information to the Police and their powers to investigate. The power of registration of crime and investigation is vested in the Station House Officer. He is further empowered to examine the witnesses. It is in exercise of these statutory powers that the investigating officer has come to a conclusion about the crime having been committed by the petitioner and respondents Nos. 2 to 6.

The Magistrate is empowered to take cognizance u/s 190 of Criminal Procedure Code. The following three modes of taking cognizance have been provided:

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

In this case learned Magistrate has taken cognizance under sub-section (b) of Section 190 of Code of Criminal Procedure.

The report of the petitioner appears to be a defence which he is still free to raise at the time of trial.

If a Police-Officer after investigation has filed a report or challan against some persons accepting them to be the accused in the case, he cannot be directed to substitute other persons as the accused.

The remedy open for a person interested otherwise or interested in bringing some other persons as the accused in the case is required to file a complaint u/s 190(a) or he may bring the fact to the notice of the Magistrate u/s 190(c) of Criminal Procedure Code.

Taking of the cognizance and filing of the challan by the Station House Officer cannot be said to be without jurisdiction. Even if the trial Court is satisfied about the involvement of some other persons in the crime, he may direct that person to be,made an accused in exercise of power u/s 319 of Criminal Procedure Code but that does not mean that the challan filed against the other persons would become illegal.

We have perused the challan papers filed by the petitioner. Prima facie sufficient evidence has been collected against the accused persons i.e. petitioner and respondents Nos. 2 to 6 and, therefore, it cannot be said that the prosecution is wholly baseless. Though it is true that if there is a counter report about the incident the investigating officer is required to investigate the case taking into account both the reports and if he comes to a conclusion in favour of a particular report he is required to further investigate that the other report is false. In all fairness he can mention this fact in his report. But if the police officer fails to mention this special fact of falsity of report by other party the whole investigation would not Become illegal. The persons who are being prosecuted because of such investigation are free to demonstrate before the Trial Judge that the report filed by them is correct. The petitioner is also entitled in the same way to demonstrate the correctness of the report lodged or a version given by him.

We do not find it to be a fit case for exercise of our extraordinary jurisdiction in favour of the petitioner. In our opinion the prosecution launched by the police referred above calls for no interference by this Court at this stage.

As a result this petition fails and is hereby dismissed.