Parallel Inquiry by Police High Court Chandigarh Judgment

Last Updated on July 3, 2021 by Satish Mishra

Overall, the pendency of cases has increased significantly at every judicial hierarchy level in the last decade. Between 2006 and now, there has been an overall increase of 22% (64 lakh cases) in the pendency of cases across all courts. Over the years, due to the growing pendency of cases for long periods, the number of undertrials (accused awaiting trial) in prisons has increased. Prisons are running at an over-capacity of 114%. As of 2015, there were over four lakh prisoners in jails. Of these, two-thirds were undertrials (2.8 lakh), and the remaining one-third were convicts.

The petitioners are accused in two different criminal cases. They have filed their separate petitions under Section 439 Cr. P.C. for a grant of 1 of 44 regular bails during the trial’s pendency. Accused-Pankaj Kumar @ Panki is an accused in FIR No.211 dated 21.08.2019 registered under Sections 302, 307, 148, and 149 Indian Penal Code, 1860 at Police Station Salem Tabri, District Ludhiana and is in custody since his arrest on 22.10.2019. In contrast, accused-Dalbir Singh was arrested on 22.03.2020 in FIR No.13 dated 22.03.2020 registered under Sections 302, 34, and 120-B Indian Penal Code, 1860 at Police Station Kotli, Surat Malian, Police District Batala.

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Facts

Petitioner-Pankaj Kumar is an accused in FIR No.211 dated 21.08.2019 registered under Sections 302, 307, 148, and 149 IPC, at Police Station Salem Tabri, District Ludhiana (Annexure P-1), recorded on the statement of complainant-Manpreet Singh, wherein it was alleged that on 20.08.2019, complainant along with his 2 of 44 friends Amandeep, uncle-Surinder Singhwas going to Neta Nagar in their car. Then at about 8.00 p.m., 8-10 persons, namely, Jinder, Bala, Phatak, Gagu, Bedi, Gagan, Sheela, Panki, Peeta, Jiya started following them. They all were armed with baseball bats, kirpan, and datar. They all stopped the complainant’s car and pulled them out. Panki (petitioner) exhorted and gave baseball bat blows on Surinder Singh’s head, who fell and turned unconscious. Nitesh Bedi, Bala, Tinder, Pathak, Gaggu gave datar and baseball bat blows to the complainant. Amandeep was given severe beatings by Gagan, Sheela, Peeto, Jiya with their respective weapons. On hearing the noise, people gathered there, and on seeing them, the accused persons, along with their weapons, ran away from the spot. The complainant informed his relatives, who rushed the victims to Civil Hospital, Ludhiana, where the complainant’s uncle Surinder Singh was declared dead.

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According to the prosecution, the supplementary statement of the complainant was recorded on 24.08.2019; after that accused, Gurkamal Singh was arraigned as an accused, and similarly, Rattan Singh was also indicted as an accused on 12.09.2019.

The petitioner has pleaded that he has been falsely implicated in the above FIR. He was not involved in the alleged occurrence, and the charge sheet under Section 173 (2) Cr. P.C. filed on 21.11.2019 against him lost significance because of the subsequent inquiry report. It is the case of the petitioner that his mother, namely, 3 of 44 Santosh wife of Kamal Kishore, submitted an application bearing C.R. No.1655305 dated 19.09.2019 on his behalf to the Commissioner of Police, District Ludhiana for initiating inquiry regarding his innocence and the same was marked to Additional Deputy Commissioner, Police Investigation, Ludhiana. After the conclusion of the inquiry, it was found that the petitioner and his co-accused, namely, Deepak Kumar, Nitesh Kumar, and Gurkamal Singh, were not involved in the alleged occurrence, and based on the said inquiry report, an application dated 02.02.2020 (Annexure P-2) was filed by SHO, Police Station, Salem Tabri before the trial Court for discharge of the petitioner. The zimni orders passed by the trial Court.

During the hearing, on 17.11.2020, learned State counsel had prayed for time to seek instructions regarding grounds raised by the petitioner and subsequently filed an affidavit dated 01.03.2021 of Gurbinder Singh, PPS, Assistant Commissioner of Police, (North) Ludhiana. As per the response, the petitioner was named in FIR as a member of the unlawful assembly, who caused injuries upon the victims, and in the said occurrence, Surinder Singh died. It has been explained that as per the complainant, Pankaj Kumar raised an appeal and gave a baseball bat blow on the head of Surinder Singh. Prima facie, material against the petitioner has been highlighted in the said affidavit to indicate that Surinder Singh suffered six injuries 4 of 44. Still, injury No.6 on the head caused by the petitioner resulted in his death.

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Lastly, the reference of the inquiry proceedings has been made to disclose that based on the inquiry report approved by Commissioner of Police, Ludhiana, a supplementary report under Section 173(8) Cr. P.C. was presented before the trial Court on 23.02.2021, and according to it, the petitioner has no role in the occurrence. Therefore, a request for his discharge has been made. The reports are pending before the trial Court for consideration.

Learned counsel for the petitioner has argued that though the petitioner’s name figured in the FIR, subsequently, the representation given by his mother was thoroughly looked into by holding an inquiry, and it was found that the petitioner and the other three accused were not present at the spot. He submits that the final report filed earlier on 21.11.2019 under Section 173(2) Cr. P.C. stands substituted by way of the supplementary final report under Section 173(8) Cr. P.C. and even the application has been filed by the SHO, for his discharge. Learned counsel states that the application is yet to be considered by the trial Court, who further invited the attention of the Court to the trial Court orders and prayed for regular bail.

On the other hand, the prayer of the petitioner is opposed by the learned counsel appearing on behalf of the State and learned 5 of 44 counsel for the complainant. Learned counsel for the complainant contended that the petitioner was armed with baseball bat and attacked the victims. He submitted that Surinder Pal Singh died of head injury, which has been attributed to the petitioner, and the two other injured eye-witnesses, namely, Manpreet Singh and Amandeep, have specifically named the petitioner and therefore, the stand of the petitioner that he was not present at the spot would be seen during the trial. He further submitted that once the FIR stood registered and investigation had commenced, the police had no occasion to hold the inquiry. According to Mr. Madaan, learned counsel, the offenses are serious, and therefore, the petitioner is not entitled to bail.

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Second Case

Petitioner-Dalbir Singh is an accused in FIR No.13 dated 22.03.2020 registered under Sections 302, 34, and 120-B IPC, at Police Station Kotli, Surat Malian, Police District Batala, which was recorded 6 of 44 on the statement of the complainant, Charanjeet Singh, who alleged that on 21.03.2020, his daughter, namely, Akwinder Kaur was married to Avtar Singh. Sufficient dowry was given at the time of marriage. After about 2-3 months of marriage, his son-in-law, namely, Avtar Singh, went to Dubai, who used to harass and maltreat his daughter and continued to threaten her on the phone that he will not keep her and will kill her, if, she does not go to her parental home. On 2-3 occasions, the complainant, along with his family members, went to his daughter’s marital home and got the matter compromised. About 15 days back, Dalbir Singh (father-in-law), Jagir Kaur (mother-in-law), Prabhjot Kaur (Sister-in-law), Kamaljit Singh (brother-in-law), and Kiranjit Kaur (sister-in-law) of complainant’s daughter had given beatings to Akwinder Kaur. They used to pressurize her to leave the marital home, and in this regard, his daughter had informed him telephonically. As per allegations, the members of her in-law’s family maltreated her and threatened to kill her if she does not go to her parental home. After that, her father-in-law made a phone call to the complainant to inform her that his daughter being unwell, is not speaking. On receiving the call, the complainant reached Village Bariar and found that his daughter was taken to Civil Hospital, Kalauar, and upon reaching there, they saw that his daughter was lying in a car bearing No.PB-06Z-4106, with abrasions on her mouth. It was alleged by the complainant that his daughter was killed by her in-laws family by 7 of 44 strangulating her.

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The petitioner has pleaded his false implication in the case, as the allegations leveled by the complainant are not worth believing because the Post Mortem Report (Annexure P-2) does not support the ocular version. According to the petitioner, his co-accused, namely, Kamaljit Singh, Prabhjot Kaur, and Kiranjit Kaur, gave representations dated 273/R-SSP/17.04.2020 and 378/MPC/25.04.2020 to Senior Superintendent of Police, Batala, regarding their false implication in the above FIR, after which DSP conducted an inquiry, Dera Baba Nanak, who found the applicants (co-accused) innocent vide his report No. 47-R/DSP/Dera Baba Nanak dated 21.05.2020. After perusal of the said report, the SSP Batala further entrusted inquiry to Deputy Superintendent of Police Detective Batala, who also submitted his report dated 30.05.2020 (Annexure P-4) in favor of the accused. Finally, SSP Batala on 02.06.2020 agreed with the said report. According to the petitioner, based on the inquiry report, a supplementary report under Section 173(8) Cr. P.C. regarding Kamaljit Singh’s innocence, Prabhjot Kaur, and Kirandeep Kaur were prepared and presented before the IllaqaMagistrate on 26.06.2020.

Similarly, another complaint/representation bearing No.470-OPC/B.R. dated 18.08.2020 was given to the Inspector General of Police, Border Range, Amritsar petitioner by his brother, namely, Murta Singh, son of Buta Singh. At that point, the 8 of 44 Superintendent of Police (Investigation) Batala conducted a separate inquiry, who submitted his report bearing No.3459/S.P./Inv. Dated 19.09.2020 (Annexure P-10) and declared the petitioner and his wife (Jagir Kaur) as innocent. The Senior Superintendent of Police, Batala, approved the said report also.

During the hearing, on 09.02.2021, learned State counsel sought time to seek instructions. This Court directed the Director-General of Police, Punjab, to file his affidavit to justify the acceptance of representation on behalf of the accused and holding an inquiry during the pendency of investigation in the FIR.

Learned counsel for the petitioner has argued that the petitioner was falsely implicated in the above FIR. Though earlier charge sheet under Section 173(2) Cr. P.C. was filed against the petitioner on 19.06.2020, the Superintendent of 9 of 44 Police, Investigation Batala, in his report (Annexure P-10), found the petitioner innocent. He submits that the other co-accused were also found innocent based on a separate inquiry report (Annexure P-4). Learned counsel further argued that as the SIT consisting of three officers is still carrying on the investigation, further detention of the petitioner is unnecessary. He prays for bail.

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After hearing learned counsel for the parties and examining the case files, this Court finds that both the learned counsel for the petitioners have mainly set up common ground on merits by placing reliance upon the respective supplementary report(s) filed under Section 173 (8) Cr. P.C., whereby they were declared innocent. Besides, the learned counsel for petitioners have also pointed out the length of custody of each petitioner and contended that the trial in the above background might consume considerable time to conclude and pressed the prayer for admitting the petitioners on regular bail.

Judgment

The Code of Criminal Procedure, 1973 provides two modes of criminal prosecution, one based upon a police investigation report. In contrast, the other is founded on the directly instituted private complaint before the magistrate, and these procedures are contained in Chapter XII and XV, respectively. The prosecution in a complaint case begins with filing complaints directly before the Court, and police have no role in the said procedure, except to hold an inquiry under Section 202 Cr. P.C., if directed by the magistrate, has already taken cognizance of the complaint. The said inquiry is also only for the extremely limited purpose of ascertaining the truth in the complaint’s allegations.

Unlike the complaint case, the prosecution based upon police report consists of two stages: First-upon information to the police, a First Information Report is registered, regarding alleged commission of the cognizable offense, followed by submission of a special report to the concerned magistrate as envisaged under Section 157 Cr. P.C. and after that, a thorough investigation is conducted. After completing the investigation, the final report is prepared as contemplated under Section 173 (2) Cr.P.C. for submission before the Court of competent jurisdiction for consideration. Second- trial 13 of 44 Court examines the final report. If a prima facie case is made out against the accused, the cognizance of offense (s) is taken by framing charges, followed by examining prosecution witnesses. After discharge of onus by the prosecution, the accused is called upon for explanation if the incriminating evidence is on record. After that, the trial Court records the defense evidence, if any, and delivers the final judgment of conviction or acquittal.

The procedure for investigation starts with the submission of a report relating to the commission of the offense, to the magistrate, empowered to take cognizance of such offense upon police report as envisaged in Section 157 Cr.P.C., which reads as under:-

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Procedure for investigation preliminary inquiry.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offense which he is empowered under section 156 to investigate, he shall immediately send a report of the same to a Magistrate empowered to take cognizance of such offense upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that-

(a) when information as to the commission of any such offense is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and

(b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also immediately notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.”

A careful reading of the above Section makes it abundantly clear that Sub-Section (1) contemplates intimation to the concerned magistrate regarding the commencement of the investigation, as the concerned investigating officer has “reasons to suspect” that “cognizable offence” has been committed. This part of the above Section appears to be formal, but is followed by two provisos (a) & (b), which deal with the different situations: As per proviso (a), the In-charge of Police Station is empowered to depute a subordinate officer to investigate the offense, if, he feels that the offense is not serious; whereas proviso (b) empowers the officer In-charge of Police Station to drop the investigation, if, he finds that no sufficient ground exists to enter into investigation and in both these eventualities, the concerned officer is required to submit a report before the magistrate, and also to send intimation to the informant, as the case may be, in terms of Section 157(2) Cr.P.C.

Thus, in the above conspectus, it is evident that the instructions dated 04.05.2017 violate the process and procedure of investigation established by the Code of Criminal Procedure, 1973, and further cause abuse of the process of Court by submitting conflicting reports, which is against the cardinal principles of administration of criminal law.

Resultantly, the instructions dated 04.05.2017 (Annexure R-2) attached in CRM-M-19681-2020, are at this moment quashed, and further, this Court deems it necessary to issue the following directions: –

(a) In every case where FIR has been registered regarding commission of a cognizable offense, the investigation shall be conducted by the Investigating Officer, strictly following the Code of Criminal Procedure provisions, 1973.

(b) In every case, where after FIR registration, the investigation has commenced, no representation/request on behalf of the accused to examine his/her innocence shall be entertained by police, and no parallel inquiry shall be initiated.

(c) In cases, at which point the registration of FIR and commencement of the investigation, the state government or the state police orders transfer of investigation, then it shall be necessary to intimate the magistrate, before whom the special report under Section 157 (1) Cr. P.C. was originally submitted. The intimation shall be given in writing with reasons for transfer of investigation.

(d) Whenever the investigating officer, after commencement of the investigation, decides to hold or stop the investigation in respect of all or any of the accused persons, for any reason, it shall be mandatory for such officer to send the report under Section 157(2) Cr. P.C. to the magistrate before whom report under Section 157(1) Cr. P.C. was initially submitted.

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(e) If the trial Court, upon conclusion of the trial, finds that the accused’s acquittal is on account of deliberate lapses in the investigation, it can pass appropriate orders for suitable departmental/penal action against the officers responsible for such lapses.

(f) The state governments of Punjab, Haryana, and U.T.

Administration Chandigarh shall ensure that the police officers and public prosecutors are properly sensitized about their responsibilities and duties and to further strictly 42 of 44 adhere to the law’s statutory provisions in respect of the investigation in crime.

(g) The state governments of Punjab, Haryana, and U.T.Adminstration, Chandigarh shall further ensure strict compliance of the directions issued by Hon’ble Supreme Court in “State of Gujarat Vs. Kishan Bhai and others”, 2014 (5) SCC 108.

Therefore, it is evident that the Director-General of Police, Punjab, has responded to the issue raised by this Court in a casual and inattentive manner without realizing its sensitivity. However, this Court refrains 43 of 44 from making any other adverse observation, expecting that the officer would act carefully in the future.

Cases Cited

Certain cases have been cited in the following case, which has taken relevance during the investigation. In the case of DinubhaiBoghabhai Solanki Vs. State of Gujarat and others[1] It has been stated that Applying the above principle. It may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not. A full inquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal according to the filing of the report, and it cannot be said that at that stage rule of Audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognize. The question is not whether audialterma partem is implicit but whether the occasion for its attraction exists at all.

In the case of State of Gujarat Vs. Kishan Bhai and others[2] as a result of this, all the states and Union Territories were directed to find out the lapses resulting in acquittal of the accused after the trial’s conclusion. If it is found that the reasons were blamed worthy, the necessary disciplinary/penal action is required to be initiated against the guilty police officers.

State of Karnataka Vs. M.Devendrappa[3] Hon’ble Supreme Court Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised.