Surendra Pathak v. State of Chhattisgarh

Heard Mr. Anmol Sharma, learned counsel for the petitioner and Mr. Ashish Shukla, learned Additional Advocate General, appearing for the State/respondent No.1. 2

2. The present petition has been filed by the petitioner under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘B.N.S.S.’) with the following relief(s):- “1. That this Hon'ble Court may kindly be pleased to call for entire records of the case bearing sessions trial no. 124/2018 pending before the Learned 16th additional Sessions Judge Raipur, Chhattisgarh.

2. That this Hon'ble Court may kindly be please to allow the instant petition and Consequently quash the F.I.R. no. 200/2013 registered with the P.S. City Kotwali, Raipur District Raipur (C.G.) by the Respondent No. I on 16.07.2013, further quash Chargesheet bearing no. 258/2016 dated

15.12.2017 (ANNEXURE P-1) in so far as the present petitioner is concerned and also the order passed by the learned 16th Additional Sessions Judge, Raipur allowing the application under section 193 CRPC and taking cognizance against the petitioner dated 05.05.2026 passed in Sessions Case No. 124/2018 for offence punishable under section 306, 365, 392, 34 of IPC against the petitioner (ANNEXURE P-2) and entire proceedings consequential proceedings initiated against the present petitioner of Sessions Case No. 124/2018 pending before the Learned 16th Additional Sessions Judge, Raipur, Chhattisgarh against the present petitioner pursuant to the aforesaid chargesheet, in the interest of justice.

3. And/or any other relief/ relief's which this 3 Hon'ble Court may think fit and proper in the facts and circumstances of the case may please be also granted to the petitioner in the interest of justice”

3. Learned counsel appearing for the petitioner would submit that the impugned order dated 05.05.2026 passed by the learned 16th Additional Sessions Judge, Raipur, taking cognizance against the petitioner under Section 193 of the Code of Criminal Procedure (now corresponding provisions under the BNSS), is wholly illegal, arbitrary and contrary to the material available on record. It is contended that the petitioner has been unnecessarily roped into the present crime despite the fact that, after a thorough investigation, the Investigating Agency itself found no material indicating his involvement in the alleged offences. Consequently, the Station House Officer, vide communication dated 01.04.2018, informed the learned Magistrate that no evidence was available against the petitioner and, therefore, further investigation against him under Section 173(8) Cr.P.C. was dropped. It is further submitted that even the departmental enquiry conducted against the petitioner, who is serving in the Chhattisgarh Police Department, categorically exonerated him of any involvement in the alleged incident.

4. Learned counsel would further submit that the entire prosecution material, including the statements of Smt. Anita Pawar, Smt. Vaishali Pawar and Pawan Kumar Soni recorded under Section 164 Cr.P.C., completely demolishes the case against the petitioner. It is argued that the consistent case of these witnesses is that the petitioner had merely 4 gone to the jewellery shop of the deceased, Dilip Pawar, on the request of Pawan Kumar Soni, who himself had been contacted by the deceased. The petitioner, whose residence was situated near the shop of the deceased, only visited the shop to enquire about his well-being and, after finding him safe, returned home. It is submitted that there is not even a whisper in any of the statements that the petitioner either threatened, assaulted, abducted, extorted or harassed the deceased or had any business, financial or personal dealings with him or his brother, Shashikant Pawar. The allegations regarding intimidation, forcible taking away of jewellery and continuous harassment have been levelled exclusively against the other charge-sheeted accused persons. Thus, the essential ingredients constituting the offences under Sections 306, 365, 392 read with Section 34 of the IPC, much less the ingredients of abetment as defined under Section 107 IPC, are conspicuously absent insofar as the petitioner is concerned.

5. Learned counsel would also submit that the application under Section 193 Cr.P.C. was filed by respondent No.3 nearly four years after the Investigating Agency had consciously dropped the investigation against the petitioner and after the Sessions Court had already framed charges against the charge-sheeted accused and commenced the trial. It is contended that the learned trial Court has mechanically allowed the application solely because the petitioner's name finds mention in the FIR and certain witness statements, without appreciating that mere reference to the petitioner's name does not constitute strong and cogent prima facie evidence warranting his summoning as an additional 5 accused. According to learned counsel, the impugned order overlooks the exculpatory statements recorded under Section 164 Cr.P.C., the opinion of the Investigating Agency, the departmental enquiry report and the complete absence of any incriminating material against the petitioner. It is, therefore, submitted that the continuation of criminal proceedings against the petitioner, who has served in the Police Department for more than 35 years with an unblemished record, is nothing but an abuse of the process of law, and consequently, the impugned order dated 05.05.2026 deserves to be set aside and the proceedings against the petitioner deserve to be quashed.

6. Per contra, learned State counsel would oppose the petition and submit that the impugned order passed by the learned trial Court does not suffer from any illegality or jurisdictional error warranting interference under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It is contended that the First Information Report and the material collected during the course of investigation disclose that the deceased, Dilip Pawar, was subjected to continuous mental harassment, intimidation and coercion on account of the financial liabilities of his younger brother, Shashikant Pawar. It is further submitted that the statements of the complainant and the family members of the deceased recorded during the merg inquiry and the subsequent investigation specifically reveal that on 11.07.2013, the petitioner, along with the other accused persons, had gone to the residence of the deceased, forcibly took him to his jewellery shop, where valuable gold and silver ornaments and pledged articles were 6 taken away, and thereafter accompanied the other accused in taking the deceased and his family members to the house of co-accused Mukesh Golchha. According to the prosecution, the deceased remained under constant pressure and harassment at the hands of the accused persons and, unable to bear the same, committed suicide by hanging himself on

14.07.2013. On the basis of the material collected during investigation, Crime No.200/2013 was registered for offences under Sections 306, 365, 392 read with Section 34 of the IPC, and the investigation revealed sufficient prima facie material against all the persons named in the FIR, including the present petitioner.

7. Learned State counsel would further submit that merely because the Investigating Agency had initially not filed a charge-sheet against the petitioner or had kept the investigation open under Section 173(8) Cr.P.C., the same would not create any vested right in his favour. It is submitted that after committal of the case, the learned Sessions Court was fully empowered under Section 193 Cr.P.C. to take cognizance against any person appearing from the material on record to have committed the offence. The learned trial Court, after considering the FIR, the statements recorded under Sections 161 and 164 Cr.P.C. and the other material available in the case diary, rightly arrived at the conclusion that there existed sufficient prima facie material warranting the petitioner's trial along with the other accused persons. It is argued that the contentions raised by the petitioner regarding the evidentiary value of the statements, the alleged absence of any business relationship with the deceased, the departmental enquiry or the 7 dropping of investigation are all matters of defence, which can be examined only during the course of trial and not in proceedings under Section 528 of the BNSS. It is, therefore, submitted that the present petition, seeking quashment of the order taking cognizance and the consequential criminal proceedings, is devoid of merit and deserves to be dismissed.

8. We have heard learned counsel for the parties and perused the material available on record with utmost circumspection.

9. From perusal of the charge-sheet, it transpires that the investigating agency, after conducting a detailed investigation into the unnatural death of deceased Dilip Pawar, has collected material indicating that the deceased was allegedly subjected to continuous mental pressure and harassment on account of financial disputes arising out of the bullion business of his younger brother. The charge- sheet further reveals that during the course of investigation, statements of several witnesses under Sections 161 and 164 of the Code of Criminal Procedure were recorded, documentary evidence was collected, recoveries were effected, and the investigating agency, upon appreciation of the material so collected, found sufficient grounds to proceed against the charge-sheeted accused. Though it is true that at one stage further investigation against the present petitioner was not proceeded with by the investigating agency, the learned Sessions Court, upon an application under Section 193 of the Code of Criminal Procedure (corresponding provisions now contained in the BNSS), has 8 independently examined the material available on record and has taken cognizance against the petitioner by passing the impugned order. Such satisfaction has been recorded by the competent Court on the basis of the material forming part of the case diary and not merely on conjectures or surmises.

10. The principal submission advanced on behalf of the petitioner is that there is no specific overt act attributed to him and that the statements of the witnesses rather indicate that he had visited the jewellery shop only on the request of Pawan Kumar Soni. Such a defence, in the considered opinion of this Court, pertains to appreciation of evidence and raises disputed questions of fact, which cannot be conclusively adjudicated while exercising inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. At this stage, this Court is not expected to meticulously evaluate the probative value of the statements recorded during investigation or determine whether the prosecution will ultimately succeed in establishing the guilt of the petitioner beyond reasonable doubt. Those are matters falling exclusively within the domain of the learned trial Court after evidence is adduced by the parties.

11. It is equally well settled that the mere fact that the investigating agency had earlier not filed a charge-sheet against the petitioner or had sought to discontinue further investigation does not denude the Court of Sessions of its independent jurisdiction to summon an additional accused if the material available on record discloses a prima facie case. 9 The satisfaction required at the stage of taking cognizance or summoning an accused is only a prima facie satisfaction and not a finding regarding guilt. Whether the material ultimately withstands judicial scrutiny is a matter to be determined during trial after both sides are afforded full opportunity to lead evidence.

12. This Court also cannot lose sight of the settled principle that the inherent jurisdiction under Section 528 of the BNSS is extraordinary in nature and is required to be exercised sparingly, carefully and only in exceptional circumstances where continuation of the criminal proceedings would amount to a patent abuse of the process of law. The Hon'ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 19 SCC 401, has categorically held that at the stage of investigation or prosecution the High Court should refrain from conducting a mini trial or appreciating disputed questions of fact while exercising its inherent jurisdiction. Likewise, in Central Bureau of Investigation v. Aryan Singh, (2023) 7 SCC 401, the Hon'ble Supreme Court has reiterated that while exercising powers for quashing criminal proceedings, the High Court cannot examine the reliability or admissibility of the evidence collected during investigation or evaluate the defence of the accused as if conducting a trial. Similar principles have been reiterated in State of Tamil Nadu v. S. Martin, (2024) 3 SCC 1, wherein the Supreme Court observed that where the allegations disclose a prima facie case and require appreciation of evidence, the criminal proceedings ought not to be interdicted at the threshold. 10

13. Applying the aforesaid settled principles to the facts of the present case, this Court is of the considered opinion that the contentions advanced on behalf of the petitioner do not warrant exercise of the extraordinary inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The principal defence sought to be projected by the petitioner is that he had no personal or business relationship with the deceased Dilip Pawar; that he had merely visited the jewellery shop of the deceased upon the request of one Pawan Kumar Soni; that the wife and sister-in-law of the deceased had subsequently filed affidavits and their statements under Section 164 Cr.P.C. also did not attribute any overt act to him; that a departmental enquiry exonerated him; and that the investigating agency itself had, at one stage, decided not to proceed against him and dropped further investigation. All these submissions undoubtedly constitute matters of defence, the correctness and evidentiary value whereof can be adjudicated only upon a full-fledged trial after the parties lead their respective evidence. These disputed questions of fact cannot be conclusively determined in proceedings under Section 528 of the BNSS.

14. A perusal of the charge-sheet further reveals that the prosecution case is not founded merely upon vague or omnibus allegations. The investigation discloses that after the disappearance of Shashikant Pawar, the younger brother of the deceased, several bullion traders allegedly mounted continuous pressure upon the deceased for repayment of outstanding dues. During investigation, statements of numerous witnesses were recorded under Sections 161 and 164 11 Cr.P.C., recoveries of jewellery and other articles were effected from the charge-sheeted accused, documentary evidence was collected, and the investigating agency formed an opinion that the deceased had allegedly been subjected to continuous harassment, intimidation and mental pressure, ultimately resulting in his committing suicide on 14.07.2013. The learned Sessions Court, while passing the impugned order dated

05.05.2026, has not proceeded merely on the basis of suspicion but has independently examined the material available on record while exercising its jurisdiction under Section 193 of the Code of Criminal Procedure and recorded its prima facie satisfaction for summoning the petitioner as an additional accused. Whether such satisfaction is ultimately borne out by legally admissible evidence is a matter which can be tested only during the course of trial.

15. Merely because the investigating agency had earlier expressed an opinion that no sufficient material was available against the petitioner or had chosen not to file a charge-sheet against him, the same would not ipso facto bar the competent Court from exercising its statutory jurisdiction if, upon consideration of the material forming part of the record, it finds sufficient grounds to proceed against him. It is well settled that the opinion of the investigating agency is not binding upon the Court and the criminal Court is competent to independently evaluate the material before it for the limited purpose of taking cognizance or summoning an accused. At this stage, this Court is not expected to examine whether the defence put forth by the petitioner is more probable than the prosecution case or whether the statements relied 12 upon by him completely exonerate him. Such an exercise would necessarily amount to appreciation of evidence, which is wholly impermissible while exercising inherent jurisdiction under Section 528 of the BNSS.

16. Accordingly, this Court is of the considered opinion that the present case does not fall within the exceptional categories warranting exercise of the inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The allegations against the petitioner cannot, at this stage, be characterised as so absurd, inherently improbable or wholly devoid of factual foundation that no prudent person could arrive at a prima facie conclusion regarding his involvement. The pleas sought to be raised by the petitioner relating to his innocence, the affidavits of the relatives of the deceased, the statements recorded under Section 164 Cr.P.C., the departmental enquiry, the earlier decision of the investigating agency, and the absence of any financial dealings with the deceased, are all matters requiring appreciation of oral and documentary evidence, cross- examination of witnesses and adjudication on the basis of the evidence which may ultimately emerge during trial. Interference by this Court at this preliminary stage would virtually amount to stifling a legitimate prosecution and conducting a roving enquiry into disputed factual issues, which is impermissible in law in view of the principles laid down in Neeharika Infrastructure Pvt. Ltd. (supra), Aryan Singh (supra) and S. Martin (supra). 13

17. Consequently, the present petition, being devoid of merit, deserves to be and is accordingly dismissed. It is, however, observed that the findings recorded herein are only for the limited purpose of examining the legality of the impugned order under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

18. None of the observations made in this order shall be construed as an expression on the merits of the prosecution case or the defence of the petitioner. The learned trial Court shall proceed with the trial strictly in accordance with law, independently appreciate the oral as well as documentary evidence that may be adduced by the parties, and decide the case on its own merits without being influenced by any observation contained in the present order. Needless to observe, all legal and factual contentions available to the petitioner are expressly kept open to be urged before the learned trial Court at the appropriate stage of the proceedings.

19. No order as to costs. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu