Dismissed

Kamla Devi and Anr. v. State of Haryana and Ors.

Punjab & Haryana HC20 Jan 2011CRM-M/12009/2010

Case brief

AI extract

What is this about?

Hon'ble Supreme Court in Union of India v. P. Hinduja has held that the Court would not interfere with the investigation or during course of investigation i.e. from the time of the lodging of FIR till the submission of the report by the officer of police station in Court under Section 173(2) Cr.P.C and that power is exclusively reserved for the Investigating Agency. Inherent powers under Section 4

What did the court decide?

Petition dismissed with liberty to raise all pleas before the trial court.

Kamla Devi and Anr. Vs State of Haryana… — Criminal Trial and Appeal | Punjab & Haryana HC (2011)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl.Misc. No. M- 12009 of 2010(O&M)

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Date of decision: 20.1.2011

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Kamla Devi and another

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......Petitioners

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Vs.

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State of Haryana and others

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...Respondents

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CORAM:HON'BLE MRS.JUSTICE DAYA CHAUDHARY.

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PRESENT: Mr. P.R.Yadav, Advocate, for the petitioners.

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Mr.S.S.Mor, Sr.DAG, Haryana for respondents No. 1 to 5.

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Mr.J.V.Yadav, Advocate, for respondents No.9 to 11.

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ORDER

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The present petition has been filed under Section 482 Cr.P.C. for handing over the investigation of case to some independent agency for fair investigation.

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Notice of motion was issued on 27^th April, 2010.

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Learned counsel for the petitioners submits that investigation of the case has been conducted in a biased manner as husband of petitioner No.1 and father of petitioner No.2 was murdered and the case of murder has been turned into a case of suicide. The husband of petitioner No.1 was a retired army personnel and there were some differences between mother-in-law and her husband. Respondent No.9 Rajbala (mother-in-law of petitioner No.1) got executed a Will from husband of petitioner No1 in her

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Crl.Misc. No. M- 12009 of 2010 [2]

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favour of the entire ancestral and co-parcenary property held by him on 7^th October, 2005. The said Will was got registered in a secret manner and by exercising undue influence. The husband of petitioner No.1 was missing since 3^rd February, 2006 and this fact was never brought to the knowledge of the petitioner. It was only on 8^th February, 2006 that one Pehlad informed petitioner No.2 regarding death of his father and dead-body of husband of petitioner No.1 was found in the well. The post mortem on the dead body was conducted on 9^th February, 2006. Immediately after death of husband of petitioner No.1, respondent No.9 declared her to be owner of the property and petitioner No.1 was not allowed to stay even in the house. Petitioner No.2 came to know about the said Will which was executed in favour of respondent No.9 and an application was moved to SHO, Police Station, Ateli by petitioner No.2 by stating that his father has been murdered by respondent No.9 in order to grab the entire property but no action was taken by the police. Subsequently, an application was moved to Superintendent of Police, Narnaul but no action was taken on that also. An application was also moved to Inspector General of Police, Gurgaon for transferring the investigation and for taking legal action against respondent No.9. Ultimately on the basis of an application submitted by petitioner No.2, FIR No.92 dated 7^th July, 2006 was registered under Section 302/34 IPC, but no action was taken against the accused persons and petitioners were never joined in the investigation. An application for transfer of investigation was moved by the petitioners but no action was taken. Instead of taking any

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Crl.Misc. No. M- 12009 of 2010 [3]

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action, a cancellation report was submitted by the police before the Court and case of murder was made out to a case of suicide. Learned counsel for the petitioners also submits that even no notice was received by the petitioners from the Court regarding cancellation of report. The facts and circumstances of the case clearly show that it was a case of murder and not suicide. The investigation conducted by the police has made a case of murder to a case of suicide. If the investigation is conducted by some independent agency, then real facts of the case would come out.

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Reply on behalf of respondents No. 1 to 5 has been filed and the same is on the record.

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Mr.S.S.Mor, learned Sr.DAG, Haryana submits that the post mortem on the dead body of deceased was conducted at PGIMS, Rohtak and as per opinion of the doctor, the cause of death was multiple injuries (fracture of ribs and pelvis). As per FSL report, no poison was detected in ESCB 1A, 1B, 1C,1D and it was a case of suicide. On the basis of said report, a cancellation report has been submitted before the trial Court. Mr.Mor further submits that after submission of cancellation report, the petitioners are at liberty to file a protest petition against the cancellation report.

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Mr.Jai Vir Yadav, learned counsel for respondents No. 9 to 11 submits that the matter was investigated fairly and it was a case of suicide and not of murder and the complainant has every right to file a protest petition before the trial Court, if they are not satisfied with the investigation and moreover, it is not the complainant but the Court is to be satisfied with the investigation

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Crl.Misc. No. M- 12009 of 2010 [4]

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conducted by the police.

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

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The position of law with regard to scope of power of Investigating Agency is to investigate the offence and to submit final report and the power of the Court is to accept or not to accept such report is also well settled. In Chapter XIV of the Code, the police has ample power for the purpose of registering the case where cognizable offence is involved. Under Section 173 Cr.P.C. the investigation is to be completed without any unnecessary delay. When a report under Section 173 Cr.P.C. is placed before the Magistrate, the Magistrate has three options; firstly he may accept the report and take cognizance of the offence and issue process; secondly, he may disagree with the report and drop the proceedings; thirdly, he may direct the Investigating Agency to further reinvestigate the matter. In case the Magistrate is agreeing with the cancellation report submitted by the Investigating Agency, a notice is required to be issued to the complainant intimating him about the cancellation report and complainant is having a right to file a protest petition. Thereafter also, the Magistrate has again three options; firstly he may accept the report and drop the proceedings; secondly he may direct further investigation by police under Section 156(3) Cr.P.C. In case the Magistrate is not agreeing with the report then he can take the view that there is sufficient ground for proceeding and taking cognizance of the offence himself and issue process. The Hon'ble Supreme Court in Union of India v. Prakash

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Crl.Misc. No. M- 12009 of 2010 [5]

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P.Hinduja and another 2003(3) RCR (Criminal) 556 has held that the Court would not interfere with the investigation or during course of investigation i.e. from the time of the lodging of FIR till the submission of the report by the officer of police station in Court under Section 173(2) Cr.P.C and that power is exclusively reserved for the Investigating Agency. Inherent powers under Section 482 Cr.P.C. cannot be exercised by the Court. Again Hon'ble the Supreme Court in M.C.Abraham and another v. State of Maharashtra and others 2003(1) R.C.R.(Cri.)452 has held as under:

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“The principle, therefore, is well settled and it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report what is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to dis-agree with the report and to take cognizance, but what he cannot do is to direct that investigating agency to submit a report to the

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Crl.Misc. No. M- 12009 of 2010 [6]

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effect that the allegations have been supported by the material collected during the course of investigation.”

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After submission of the cancellation report the matter is before the Magistrate to accept the cancellation report or not.

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In view of the facts as mentioned above, there is no merit in the contentions raised by the learned counsel for the petitioners and petition is dismissed with liberty to raise all pleas before the trial Court.

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(DAYA CHAUDHARY) JUDGE

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January 20, 2011 raghav

Kamla Devi and Anr. v. State of Haryana and Ors.

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Kamla Devi and Anr. v. State of Haryana and Ors.

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