Utkarsh Saxena vs State Of Madhya Pradesh

The criminal revision under judgement has been preferred by the Petitioner against the order dated 16/04/18, passed by the Court of the Ld. XVIII Additional Sessions Judge, Bhopal in Sessions Trial No. 192/2018 (State of Madhya Pradesh [through P.S. Chunabhatti, Bhopal] Vs. Utkarsh Saxena). By the said order, the Ld. Trial Judge was pleased to dismiss the application filed by the Petitioner u/s. 227 Cr.P.C for discharge and instead, exercising jurisdiction u/s. 228 Cr.P.C, framed charges against the Petitioner for offences u/s. 304-B, 498-A IPC and u/s. 3 and 4 of the Dowry Prohibition Act, 1961.

This case raises some questions of public importance with regard to the authority and responsibility of the police while investigating an offence. To be more specific, (A) whether the investigation into an offence is done solely for the purpose of securing an indictment and subsequent conviction of a person accused of committing an offence or, does investigation entail a fair enquiry into the allegations levelled against a person with an avowed aim of unearthing the truth? And (B) Is there a duty owed by the police to investigate the parallel hypotheses/defences put forward by a person accused of an offence with the same amount of diligence and impartiality and at the end of it, either reject or accept the case of the person accused of the offence?

The facts briefly are as hereafter. Dr. Capt. Aditya Saxena is the elder brother of the Petitioner. He is a doctor serving with the Indian Army. The marriage of Dr. Capt. Aditya Saxena with Dr. Ayushi Saxena was solemnised on 18/01/17 at Hotel Sayaji in Indore as per Hindu rites and rituals. At the time of marriage, Dr. Ayushi Saxena was prosecuting her studies for a Post-Graduation degree in medicine from the Gandhi Medical College at Bhopal. At the time of marriage, the brother of the Petitioner was posted with 9 Grenadiers, Mewar, 56 APO, as the Regimental Medical Officer.

Dr. Ayushi Saxena (hereinafter shall be referred to as the "Deceased") committed suicide at her parental home on 15/08/17 by hanging. Admittedly, there is no suicide note left behind by the deceased. The deceased is stated to have gone along with her parents to participate in the flag hoisting ceremony in the neighbourhood on the occasion of Independence Day, but left early from the venue, alone, returned home and took the extreme step before her parents returned.

The FIR bearing Crime No. 220/2017 was registered at P.S. Chunabhatti, Bhopal on18/08/17, for offences u/s. 498-A, 304-B IPC, 3 and 4 of the Dowry Prohibition Act, 1961 against Dr. Aditya Saxena (the husband of the deceased), Mr. Lokesh Kumar Saxena (father in law of the deceased), Mrs. Renu Saxena (mother in law of the deceased) and Mr. Utkarsh Saxena (brother in law of the deceased and the Petitioner herein).

The allegations in the FIR are to the effect that the parents of the deceased had gifted twenty tolas of gold ornaments and articles of household use to the deceased at the time of her marriage. Upon a demand being made for a car, a cheque of rupees six lakhs was given on the day after the marriage. Even after all this was given, the husband Aditya, the father in law Lokesh Kumar Saxena, mother in law Renu Saxena and brother in law Utkarsh Saxena used to mentally harass the deceased for more dowry/money. It is further alleged in the FIR that the father of the deceased, in order to ensure that the deceased is not harassed, gave a cheque of rupees five lakhs to the husband of the deceased. Besides, it was also alleged that the husband of the deceased was demanding rupees eleven lakhs which was available in the bank account of the deceased in order to finance the MBA course of the Petitioner.

It was alleged that on 09/03/17, the "in laws" of the deceased got her foetus aborted by Dr. Meena Agarwal at CHL Hospital in Indore and on the next day, they sent the deceased alone to her parental home on a bus, in a "pitiable" condition. On 14/08/17, a day prior to the deceased committing suicide, the deceased is stated to have celebrated her husband's birthday at Bhopal and sent her husband and her in laws, the photographs of the celebration and also informed them over phone upon which, the deceased was allegedly taunted by her husband for having celebrated his birthday at her parental home and thereby mentally harassed the deceased. On account of these "taunts" and the demand for dowry and the mental and physical harassment meted out to the deceased by her "in laws, father in law, mother in law, brother in law, husband" the deceased committed suicide on 15/08/17. This is the long and short of the allegations against the Petitioner and other co-accused persons, as is borne out in the FIR.

In the course of the investigation, the police recorded the statement of the witness u/s. 161 Cr.P.C. Briefly, the Court feels it essential to discuss the alleged involvement of the Petitioner as disclosed from the statements of the witnesses u/s. 161 Cr.P.C. The statement of Devendra Saxena, the father of the deceased was recorded u/s. 161 Cr.P.C on 19/08/17. The allegation against the Petitioner in the statement of the father of the deceased is omnibus and highly generalised. The only allegation seen is "आयुषी की सास रेणुसक्सेना और ससरु लोकेश ुकमार सक्सेना और देवर उत्कषर्ष सक्सेना लड़की पर रुपयों के ललए दबाव बना रहे थे तथा मार पीट कर प्रतालड़त करते थे"।The second statement recorded by the police u/s. 161 Cr.P.C is that of the uncle of the deceased, also on 19/08/17. He is Rajendra Saxena and he alleges that "मई जब भी अपने बड़े भाई देवेंद्र सक्सेना के घर छत्रपती लशवाजी कालोनेूनाभट्टीच भोपाल जाता था, तो भाई कहता था की, आयुषी के ससरालु वाले सास,ससरु, देवर,तथा पलत सभी परेशान करतर्ते रहते हैं और रुपये की मागं कर रहे हैं। बच्ची आयुषीने भी मुझसे तीन चार बार बताया था की ससरालु वाले मुझे प्रतालड़त करते .हैं"

The next witness whose statement has been recorded by the police u/s. 161 Cr.P.C is Ms. Kanchan Kishore Shrivastava, a friend of the family. This witness, whose statement u/s. 161 Cr.P.C is recorded on 22/09/17, says "लदनांक 23 मई 2017 जब आयुषी भोपाल आई तो और दुबली लदखी तो मैंनेछाप तुम्हें क्या टेंशनुबलीहैक्योंद हो रही हो तो बोली सास तथा देवर उत्कषर्ष ने लबना ुझेवजह म मारा तथा मेरा मोबाइल भी तोड़ लदया........."। The next statement is that of Mrs. Meena Saxena. She is the mother of the deceased. The allegations against the Petitioner as per her statement u/s. 161 Cr.P.C are "......आयुषी के साथ लोके श सक्सेना सास श्रीमलतुसक्सेनारेण देवर उत्कषर्ष सक्सेना लड़की आयुषी पर रुपयों के ललए दबाव बनाते थे तथा तथा प्रतालड़त कर मार पीट ते थे मेरी लड़की का फोन भी छीन ललया था बात भी नहीं करने देते...." ।थे...... आयुषी का देवर उत्कषर्लमशनषएड के पहले ताने मारता था बड़ी पढ़ने वाली बनती है लफर भीबरंअछे न नहीं आते हैं प्रतालड़त करता था"।The aforementioned is the material on record against the Petitioner.

The Petitioner and the other co-accused persons applied for anticipatory bail and the same was granted to them by this Court. After investigation, the police filed the charge sheet against all the accused persons for offences u/s. 498-A, 304-B of the IPC and setions 3 and 4 of the Dowry Prohibition Act, 1961. The Petitioner moved an application u/s. 227 Cr.P.C before the Ld, Trial Court praying for a discharge. The Petitioner had filed several documents from his side to show how he has been falsely implicated only to wreck vengeance on the entire family. The impugned order dated 16/04/18, by which the discharge application filed by the Petitioner was dismissed is from page 22 to 24 of the revision petition. In paragraph 5 of the impugned order, the Ld. Trial Court has held that at the time of framing charges the Court only has to see the prima facie evidence against the accused persons on the basis of the material filed along with the charge sheet and the probative value of the evidence is not to be gone into. The legal position appreciated by the Ld. Court below cannot be faulted which, brings us back to the primary question involved in this case that if the police had, in the course of investigation also taken the defence of the accused into reckoning, it may then have arrived at an entirely different conclusion and may not have filed a charge sheet against the Petitioner. The Ld. Counsel for the Petitioner submits that even if the entire evidence of the prosecution is taken as indelible truth, the same does not disclose a prima facie case against the Petitioner. The Ld. Counsel for the Petitioner has also argued that the police never investigated into the flimsy and flippant allegations levelled against the Petitioner and had the police investigated as to where the Petitioner was during the eight months after the marriage of the deceased with the brother of the Petitioner, it would have been convinced that the Petitioner was, for most of the time, in Bangalore and in Mumbai. He further states that had the police investigated into the WhatsApp conversations between the Petitioner and the deceased it would have been convinced that there was great bonhomie between the Petitioner and the deceased and that the omnibus allegations levelled by the parents of the deceased against the Petitioner were completely untenable.

The Petitioner has averred that at the time of the deceased committed suicide, he was working in Mumbai and also pursing his diploma in Management. In this regard, the Petitioner has drawn the attention of this Court to the certificate issued by SPJIMR Institute of Management, Mumbai dated October 10, 2017, which reveals that the Petitioner was pursuing his Post Graduate Diploma in Management from the said institute for the session 2017 - 2019. There is a letter dated 10/10/17 issued to the Petitioner by the same institution that he is guilty of continued absence from the course and that he would have to start afresh. The prolonged period of absence mentioned by the institution is, according to the Ld. Counsel for the Petitioner, the time the Petitioner was awaiting a decision on his anticipatory bail application pending before this Court. Ld. Counsel for the Petitioner has also stated that the Petitioner had to lose a year on account of the false implication in this case. Another certificate issued by the Multinational Company Qualcomm India Private Ltd., reveals that the Petitioner was working with the said company from 23/06/14 to 12/06/17. In short, the Ld. Counsel for the Petitioner has submitted that had the police investigated in to the case of the Petitioner impartially, it would not have charge sheeted him.

The Ld. Counsels for the State and objector/ complainant have argued that the well settled principal of law at the stage of framing charges by the Trial Court, is to see if there exists a prima facie case against the accused. A roving equity into the probative value of the evidence is uncalled for. They have further submitted that the case of the Petitioner that he was at Bangalore and Mumbai pursuing his job and education is his defence which the Petitioner has to prove by adducing evidence at the appropriate stage. Further, it is submitted that the Petitioner has been named by the witnesses and a role is attributed to him. Whether the said act of the Petitioner stands proved or not is a matter for the Trial Court to assess. As regards the investigation by the police, the State and the Objector have submitted that the duty of the police is to see if the evidence accumulated in the course of investigation reveal an indictable case against the accused and its not the job of the police to asses the evidence from the standpoint of whether, the case would end in a conviction or an acquittal. They had thus prayed that there is no error in the order framing charge and that the petition filed by the Petitioner deserves to be dismissed and the Petitioner be asked to stand trial.

Heard the Ld. Counsels for the parties and perused the documents on record. The evidence on record against the Petitioner reveals that his involvement if any, appears to be peripheral. However, the questions that this case raise, as mentioned earlier in paragraph 2 of this order, is the approach of the police while investigating a charge against a prospective accused. Investigation is an executive act with far reaching legal implications for the accused. A fair investigation cannot mean an investigation only from the stand point of the victim alone. The right to a fair trial of the accused in fact commences from the stage of investigation itself. A result of a biased investigation continues to flow through the course of the trial. A fair investigation inheres in Article 14 and 21 of the Constitution.

A fair investigation is not only a constitutional and statutory mandate on the State but a solemn duty owed by the State in the fulfilment of its commitment towards international covenants to which it is a signatory. India is a signatory to the Universal Declaration of Human Rights (hereinafter referred to as "UDHR"). Article 7 of the UDHR reads, All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. This is akin to the protection provided by Article 14 of the Constitution which guarantees equality under the law and equal protection of the Law. However, the said protection is also available for a person accused of an offence. Procedure established by law requires the police to be fair in investigation which is to be carried out from the standpoint of the accused also.

The term "Investigate" has been defined as "1. To inquire into (a matter) systematically; to make (a suspect) the subject of a criminal inquiry <the police investigated the suspect's involvement in the murder>. 2. To make an official inquiry <after the judge dismissed the case, the police refused to investigate further>" Black's Law Dictionary - Tenth Edition.

"Investigation" has been defined as "The activity of trying to find out the truth about something, such as crime, accident, or historical issue; esp., either an authoritative enquiry into certain facts, as by a legislative committee, or systematic examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method" Black's Law Dictionary - Tenth Edition.

Emphasising on the importance of a fair investigation as an integral step in the dispensation of justice, the Supreme Court observes "What is of importance is that as justice must not only be done but it must also appear to have been done, similarly, investigation must not only be fair but must appear to have been conducted in a fair Black's Law Dictionary - Tenth Edition manner" Common Cause Vs. Union of India - (2015) 6 SCC 332, para 35. Again, the Supreme Court while highlighting the necessity of a fair and proper investigation in the establishment of the rule of law held "A fair and proper investigation is always conducive to the ends of justice and for establishing the rule of law and maintaining proper balance in law and order. These are very vital issues in a democratic setup which must be taken care of by the courts" Azija Begum Vs. State of Maharashtra - (2012) 3 SCC 126, para 13.

Talking about the onerous task upon the police to conduct a fair investigation and while highlighting the role of the investigating agency, the Supreme Court held "There is a very high degree of responsibility placed on an investigating agency to ensure that an innocent person is not subjected to a criminal trial. This responsibility if coupled with an equally high degree of ethical rectitude required of an investigating officer or an investigating agency to ensure that the investigations are carried out without any bias and are concluded in all fairness not only to the accused person but also the victim of any crime, whether the victim is an individual or the State" Common Cause Vs. Union of India - (2015) 6 SCC 332, para 31. Elevating a fair investigation to the status of a Human Right, the Supreme Court held "......Fairness in investigation as also trial is a human right of an accused. The state cannot supress any vital document from the Court only because the same would support the case of the accused" Samadhan Dhudaka Koli Vs. State of Maharashtra (2008) 16 SCC 705 - Page 705, Para 12.

Under the Criminal Procedure Code, 1973 (hereinafter referred to as the "Code"), the definition of investigation in section 2(h) reflects that it entails the "collection of evidence" by the police or any other person authorised by a Magistrate. The same process of assimilating and appreciating evidence to see if on the basis of it a person can be put to trial, when done by a Magistrate, is defined in section 2(g) of the Code as an Inquiry.

Investigation is an executive action with serious implications to the legal and constitutional rights of an individual. In Administrative Law, the concept of acting fairly involves "Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions" Administrative Law - Tenth Edition - H.W.R. Wade & C.F. Forsyth, Page 415.

Thus, it is seen that investigation is an executive power vested in the police under the Code, generally. There are other Special Statutes which may provide for additional or different powers of investigation to the police for the investigation of the offence laid down in the Special Statute. Thus, ".... the investigation of an offence is the field exclusively reserved for police officers whose powers in that field are unfettered so long as the power to investigate into the cognisable offences is exercised legitimately and in strict compliance with the provision of the Code of Criminal Procedure 1973...." Halsbury's LAWS OF INDIA - Second Edition Vol. 12(2) - Page 1 to 2.

Authority without responsibility or accountability, leads to a reprehensible situation where the abuse of authority, or its use with a shade of bias, can render worthless all the hallowed rights of the individual articulated in the Constitution. Investigative powers of the police are not merely an "Authority" but also a "Responsibility". Where the police have vast powers of arrest, search and seizure in the course of an investigation, it also has the hallowed responsibility of being fair in the conduct of investigation. Fairness in investigation can never mean accepting the case put forward by the complainant as the gospel truth but would involve in its scope, considering the case put forth by the accused in his defence. Undoubtedly, the accused is clothed with the right against self-incrimination and many an accused prefers to hold his peace, but where the accused informs the police about his innocence and even offers evidence to establish the same, such evidence is either not received by the police or after receiving it, it is lost is the pages of the inner case diary. Investigation into the defence of the accused is seldom done. Where the accused provides credible material to the police to investigate and ascertain his innocence, it is the bounden duty of the police to investigate into the version put forward by the accused though, it is well within its right to arrive at a finding after such investigation, that the defence put forth by the accused is not credible and reject the same by giving reasons.

When Article 21 of the Constitution provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law", a fair and unbiased investigation by the police into the defence put forth by an accused, inheres in the "procedure established by law" of Article 21. Thus, ignoring the defence of the accused in the course of investigation, the same would result in a violation of the right of the accused under Article 21 of the Constitution as such a one-sided investigation imperils the accused by exposing him to an arrest and custody, though innocent.

Investigations into certain offences like 498-A and offences falling in the penumbra of a civil and criminal liability, the police or the investigative agency would do well to invite from the accused, his version, even if not offered. Many a times, considering the case of the accused may reveal the nonexistence of criminal liability upon the accused. As investigation is the ascertainment of truth, the same can be done only by analysing the case of both, the complainant and the accused. The shortage of manpower and expenditure are not viable excuses available to the police for not investigating into the defence put forth by the accused.

Thus, this court concludes (a) that a fair investigation is one which is done for the purpose of unearthing the truth and not for the sole purpose of securing a conviction. It goes without saying that where the police would ensure that an accused is tried and convicted on account of adequate evidence to prove his guilt, it would also close the case against the innocent where there is no evidence to sustain a reasonable prospect of conviction. (b) that a fair trial entails considering the defence of the accused and investigating the same to ascertain if the allegations levelled by the Complainant against the accused appear to be prima facie true or whether the consideration of the material put forth by the accused, renders the allegations against him, as levelled by the Complainant, highly improbable,

The facts in the instant case reveal that the police could have and should have investigated into the allegations against the Petitioner and ascertained the veracity of the charges against him, as the Petitioner was staying in a different State, pursing his education and profession, and was away from the deceased and his brother and also away from his parents and therefore, the probability of him being particeps criminis in the offence u/s. 498-A, 304-B and 3 and 4 of the Dowry Prohibition Act, was so extremely improbable and its clear that the Petitioner was roped in to wreck vengeance on the entire family of the Petitioner. Even otherwise, the allegations against the Petitioner, are so generalised, omnibus and flippant that the same do not disclose a prima facie case against the Petitioner.

Thus, this petition succeeds and the impugned order dated 16/04/18, passed by the Court of the Ld. XVIII Additional Sessions Judge, Bhopal in Sessions Trial No. 192/2018 (State of Madhya Pradesh [through P.S. Chunabhatti, Bhopal] Vs. Utkarsh Saxena) whereby, the Ld. Trial Court was pleased to frame charges against the Petitioner for offence u/s. 304-B and 498-A IPC and 3/4 of the Dowry Prohibition Act is set aside and the Petitioner is discharged.