Dismissed

Jai Prakash and Others v. State Of Uttarakhand and Another

Uttarakhand HC14 Dec 2020CRLR/248/2014

Case brief

AI extract

What is this about?

In this criminal revision against a Sessions Judge's order allowing revision of a closure report and remanding the case to the trial court, the court rejected the appellant's claim of lack of jurisdiction for remand.

What did the court decide?

The criminal revision against the Impugned Order allowing remand to the trial court was dismissed; the concerned Magistrate is directed to decide the case expeditiously.

Jai Prakash and Others Vs State Of… — Civil Procedure and Limitation | Uttarakhand HC (2020)

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RESERVED

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Revision No.248 of 2014

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Jai Prakash and three others ……….Revisionists Vs. State of Uttarakhand and another ……..Respondents

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Present:

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Mr. Tapan Singh, learned Counsel for the revisionists. Mr. Rakesh Kumar Joshi, learned Brief Holder for the respondent no. 1. Ms. Suman Sharma, learned Counsel for the respondent no. 2.

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Reserved on: 19.07.2019 Delivered on:14.12.2020

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Hon’ble Alok Kumar Verma, J.

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This revision is directed against the impugned judgment and order dated 18.09.2014, passed by the learned III^rd Additional Sessions Judge, Haridwar in Criminal Revision No. 516 of 2012, Smt. Lata Vs. State of Uttarakhand and others, whereby the learned Additional Sessions Judge allowed the revision of the respondent no. 2 and remanded the matter to the learned trial court to decide the matter in the light of the observations made by the impugned order.

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Facts, necessary for adjudication of this revision, are that an application under Section 156(3) of the Criminal Procedure Code, 1973 (hereinafter referred as “the Code”) was filed by the respondent no. 2, Smt. Lata, in the court of 1^st Additional Chief Judicial Magistrate, Haridwar, which was allowed and an F.I.R. was lodged against the revisionists and one Smt. Rajwanti under Sections 147, 323, 354, 452, 504 and 506 of the I.P.C. at Police Station Ranipur, District Haridwar.

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According to the F.I.R., the land of the revisionistaccused Jai Prakash was located next to the land of the

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informant. He wanted to forcefully occupy the land of the informant. Because of this, he was angry with the informant. On 21.10.2009, the husband of the informant was beaten up by the accused persons. The husband of the informant submitted a complaint to the Senior Superintendent of Police, Haridwar on 27.10.2009. The police came to investigate in this regard and due to this, the accused persons became very angry. On 05.11.2009, at about 5:00 in the evening, the informant, aged about 28 years, was sitting inside her house, then the accused persons entered her house with sticks and started to abuse her. They were saying that they would take revenge for complaining to the Senior Superintendent of Police. They beat up the informant with sticks, kicks and fists. They outraged her modesty and they pushed down the husband of the informant. The villagers saved the informant and her husband. The accused persons threatened to kill in future. The following day, the informant/injured examined her injuries at Government Hospital.

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After investigation, the Investigating Officer submitted the closure report on 19.12.2009. The respondent no. 2 submitted protest petition against the closure report. After hearing the respondent no. 2/informant, the learned Magistrate rejected the protest petition and accepted the closure report vide order dated 20.10.2012 with the observations that it is clear from the perusal of the Case Diary that the statements of the informant and the witnesses were taken by the Investigating Officer. The evidence, which had been collected under Section 161 of the Code and presented by the Investigating Officer, has not revealed any such facts that can take cognizance of the offence against the accused persons or directions can be issued for further investigation. The closure report has been submitted by the Investigating Officer after fair investigation.

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The respondent no. 2 preferred a revision before the learned Sessions Judge, Haridwar, which was transferred to the Court of III^rd Additional Sessions Judge. The learned Additional Sessions Judge allowed the revision by impugned order and directed the learned trial court to decide the matter in the light of the observations made by him after made observations that on perusal of the record, it is clear that the order has been passed without taking consideration of the objection and medical report, whereas, the order should have been passed after considering the objection submitted against the closure report. The revisionist/victim examined her injuries on the following day at the Government Hospital. The informant has stated that no statement was recorded by the Investigating Officer. Therefore, in the above circumstances, the revision, preferred by the informant was allowed.

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Heard learned counsel for both the parties and perused the records.

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Learned counsel for the revisionists submitted that a Civil Suit for perpetual injunction was filed by the husband of the respondent no. 2, but that Civil Suit was dismissed on 25.07.2013. The matter pertains to the civil dispute and the husband of the respondent no. 2 lodged a false First Information Report in the name of the respondent no. 2 just to harass the revisionists. These submissions of learned counsel appearing for the revisionist are required to be tested only at the time of trial.

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Learned counsel for the revisionists submitted that the revisional Court has got no jurisdiction to remand the matter; the power of remand does not vest in the revisional Court; while exercising the powers under Section 397 of the Code;

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therefore, learned revisional Court has committed illegality in allowing the revision and remanding the matter to the learned trial court.

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During arguments, the arguments of the learned counsel appearing for the revisionist was limited to the extent that the impugned order of the revisional Court is without jurisdiction. Learned counsel appearing for the respondents refuted the arguments of learned counsel for the revisionists and submitted that the revisional Court has jurisdiction to remand the case. Therefore, in the light of these submissions, the matter is being considered whether the revisional Court has the requisite jurisdiction to remand the case and whether the impugned judgment has been passed under the said jurisdiction.

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Learned counsel appearing for the State, respondent no. 1, submitted that during the investigation, it was found that there was a dispute between the parties regarding the land and after considering facts and circumstances of the case, the Investigating Officer had filed the closure report. However, the learned counsel for the State submitted that the revisional Court has jurisdiction to remand the case.

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Learned counsel appearing for the respondent no. 2 submitted that there is no illegality and perversity in the impugned judgment and the revisional Court has jurisdiction to remand the case to the trial court.

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The report under Section 169 of the Code is referred to as a “closure report”. In Abhinandan Jha Vs. Dinesh Mishra, 1968 Criminal Law Journal 97, the Hon’ble Supreme Court has held that whether a case comes under Section 169 or under 170 of the Code, on the completion of

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the investigation, the police officer has to submit a report to the Magistrate, under Section 173 of the Code, in the manner indicated therein, containing the various details.

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In Union Public Service Commission Vs. S.Papaiah, (1997) 7 SCC 614, the Hon’ble Supreme Court dealt with a case in which a closure report was submitted in which the Hon’ble Apex Court quoted from a Three Judge Bench judgment in Bhagwant Singh Vs. Commissioner of Police and another, (1985) 2 SCC 357, in which the Hon’ble Apex Court stated that a Magistrate, in dealing with a report from the police under Section 173 of the Code, can adopt one of three courses-(1) he may accept the report and drop the proceedings; or (2) he may disagree with the report, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156 (3).

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It is not only the responsibility of the investigating agency but as well that of the court to ensure that investigation is fair. A fair trial is integral part of Article 21 of the Constitution of India. In Maneka Sanjay Gandhi Vs. Rani Jethmalani, (1979) 4 SCC 167, the Hon’ble Supreme Court observed that assurance of a “fair trial” is the first imperative of the dispensation of justice. In Nirmal Singh Kahlon Vs. State of Punjab, 2009 AIR SC 984, the Hon’ble Supreme Court held that a concept of fair investigation and fair trial are concomitant to preservation of fundamental right under Article 21 of the Constitution of India. In Rattiram Vs. State of M.P., (2012) 4 SCC 516, the Hon’ble Supreme Court observed that a “fair trial” is the heart of criminal jurisprudence, and, in a way, an important facet of democratic polity that is governed by rule of law. Denial of “fair trial” is crucifixion of human rights. In Kalyani Baskar Vs. M.S. Sampoornam, (2007) 2

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SCC 259, the Hon’ble Supreme Court held that the right to fair trial includes “fair investigation”.

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Therefore, it is the responsibility of the courts to ensure that the investigation should be judicious, transparent and fair and the record of investigation should not show that efforts were being made to protect and shield the guilty or the investigation was indicative of bias mind.

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Section 2(h) of the Code defines “investigation”. The expression “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

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Investigation usually starts on information relating to the commission of an offence given to an officer-in-charge of a police station and recorded under Section 154 of the Code. The final step of investigation is formation of opinion as to whether the accused should be sent up for trial.

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The power of the police to investigate freely and fairly is well recognized and codified in law. Chapter XII of the Code deals with “Information To The Police And Their Powers To Investigate”. The Chapter XII of the Code begins from Section 154 and the last Section of this Chapter is Section 176.

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Section 397 of the Code confers revisional power on the High Court and the Sessions Judge. Such power may be exercised to call for and examine the regularity of any proceeding before any inferior Criminal Court within its jurisdiction for certain purpose. In exercising its revisional power, the Sessions Judge can examine the illegality,

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irregularity or jurisdictional error. The revisional court have power to issue direction by pointing out the error regarding the order passed by the Magistrate.

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In the instant matter, the revisional court pointed out the error regarding the order passed by the Magistrate. I am, therefore of opinion that there is no illegality, perversity or irregularity in the impugned order.

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For all these reasons, I reject the contention of the revisionists that the impugned order is without jurisdiction.

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Accordingly, this criminal revision is dismissed.

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Before parting with this case, I may clarify that the concerned Magistrate is directed to proceed with the case forthwith and decide the case as expeditiously as possible in accordance with law uninfluenced by any observations made by this Court for the purpose of deciding the instant revision.

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(Alok Kumar Verma, J.) 14.12.2020

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Sanjay / NEHA

Jai Prakash and Others v. State Of Uttarakhand and Another

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Jai Prakash and Others v. State Of Uttarakhand and Another

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