I NTI lE lUGH COURT OF PUNJAB AND HARYANA v. Slat c01l I arvanaand ot hers

PuniabSi Harvana High Court Bar Associat ion Chandiearh v St at e of Puniaband ot hers 1994 11 RCRCrim inall 205 Kashm cri Dcvi v DelhiAdm inist rat ion and anot her 1988CrLl 1800 and j udgm entof t hisCourt in Rai Rani v St at e of Puniab 2000649R lrim inall24 1 RainiVishram Pat il v St at e of Maharasht ra and ot hcrs 2007 51Al3R NOCI 707 6MOBI Ram Gopal v St at e of UP And ot hers 2009 621 AlaJoNOCI230 All Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh in supportofhis cont ent ion JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 1 1 r 0 0 I C5 Z n r I 06 n0 7 Z Ll 296 CrleMisc NoM49909 of2006 141 Mr Allor learned counsel for t he St at e subm it ed t hat llR No8 1 dat ed 292006 under Sect ions 3021307112043 I PC andSect ion 25 of Anns Act and accused Vim al Kuinar Sushil Kum ar Sat yaNarain alias Raj uand Rakesh Kum ar wcre arrcst edon 532006 and challan againstt hcm was on 1 82006 Accused Sat yaNarain by t hc Court Accused PardeepKum ar was arrest cd on 5122007and accused Vinod Kum ar arrest cd on 1822008 challan againstt hem was put up in t hc Court 1 51 22008 Moham m ad Shah Alain froin UP and AbheySinghChaut ala wercalso nained as accusedin t he aforesaidFlR and Sat cndcr Kum ar alias Rinku Tiwari and Viswas alias Vasu alias Nepali werc also idcnt ilicd as accuscdby t he t hc basis of of Moham m ad Shah Alam Aft er of t hc bcingcom panion case againstt hein Mohd Shah Alam and Sat enderdied I ll cncount crs by t he policc 111t hc st at c of UP Accused Vishwas alias Vasu could not bc t raccd out Accused AbheySinghChaut alaj oinedt he on 12 Dcccm bcr 2008 and in t he his st at einent was recordcd alongwit h st at cm ent sof ot hcr wit nessesand he was not found involved MrMor also subinit t cdt hat I earncdcounsel for t he pet it ionerhad rclied upona CD but t he originalCD was not givendespit ewrit t en com lnunicat ions MrMor furt hcrargucd t hat t hc t rial is at t he fag cnd and t he sam c is I ikclylo concludc 1hcrc are t ot al 63 wit nessesout of which 31 have bcen cxalnincd and 10 wit nesscs have been givenup and one wit ness has expircd The accusedwho are facingt rial for t he last m any years would havc t o go back lo facc t rial again and it would be unfair t o t hem t o facc t he agony again Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Q 0 0 I C5 Z I 08 00 7 Z 297 L CriMisc NoMe79909 of2006 151 andt heir rightt o specdyt rial would be Oust rat ed Mrhekhawat leam edcounselappearingon behalfofaccuscd RakeshKum ar subm it t ed t hat accused are facingt hc agony of t rial since 2006 and if is allowed t o be conduct ed at t his st agc it would be a fut ile exerciseand t he sam e would not not be in t heint crcst of eit her of t he loart iesMrhekhawat also sublnit t ed t hat fair lllVCSt lgat iOllwas conduct ed by t he policcand no furt hcr invcst igat ion1S rcquiredl I e relied upon t he j udgm entof t he Honblc Suprcm cCout t DVenkat asubram aniam I ll and ot hers v MKMohan Krishnam achari and anot her 2009641R2 6Criininal93 18 and of t his Court I n Phoolwat i v St at e lUnion Territ orv of chandiearhl and ot hers 2008 619 RC12Crim inall 167 and Bharat Puniab 2007 I nder Sinh Chahal ve St at e of CR6Crim inall427 in supportofhis cont cnt ion 1 havc heardt he argum ent sof learncd counscl for t hc part ics and havealso t he docuinent savailable on t hc fle I n t he present casc FlR was regist ercdon t hc basis of colnplaintm ade by t he pet it ionerwho 1S none else but real brot hcr of t hc dcccasedOn t hc basis conduct edby t hepolice as m any as five accused nalnely Sat Narayanalias Raj u Viinal Goyal Sushil Kuinar Rakcsh Kum ar and PardeepGodara were arrest cd by t he policeand chaI lan against Sat NarayanVinod Kuinar Suresh Kum ar and Rakcsh Kum ar was filed Accused Mohd Shah Alam was declared PC1 Accused Vinod Arora surrenderedon 182008 and PardeepGodara on 24122007 and t heyj oinedt he invest igat ionAccused Mohd Shah Alam was not arrest edinspit e of effort s m ade by t he police Accused Mohd Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 298 W CrlMisce NoN79909 of2006 161 Shah Alain and Sat inder died duringt he pendencyof t he 4 J m r 0 0 C0 I Z r I 08 r 7 Z accusedVishwas alias Vasu alias Nepalicould not bc t raccd out so lnit iallyAbheySinghChaut alaj oinedt he on 121 2008 and againon 3 A2009 10uringt he course a CD was also byt he which was sent t o lSl Madhuban and t hc salllC Was furt hcr scnt t o C 12 l and t he askcd t o sendt he originalCD but t he originalCD was not givenby t he and hc evcn refusedt o put hs signat ureon t he not ice sent by t hepolicc MrBaldcv SinghlearnedSenior Counsel for t he pct it ioncrwas not able t o put fort h any I cgalevidence againstAbhcySinghChaut ala or ot hcr accused for orderingfurt her and he did no1 producc anyevidcncc in t his regardand sim plysubinit t cd t hat duc t o polit ical rivalry m any cascs againstt he deceascd Abhcy Singh Chaut alawas spccificallym ent ioned in t he com plaintbut he was nevcr arrest edby t he policeThe conduct ed by t he policewas I lOt propcrbccause of polit icalinflucnce and ot her considcrat ions I nspit eof affording Mr Baldev Singhwas not ablc t o show any m at erial flor conduct ingfrcsh inquiryexccpt m ere allegat ionsin t he I lR inspit eof repcat cdquenes byt he Court Mr Baldev Singhwas not able t o pinoointanyt hingfrom t he st at em ent s of wit ncsscs recordedduringt rial Now t he quest ionfor considerat ion by t his Court is whct her t hc dircct ions for furt her invest igat ioncan bc issued by t his Court at t hc st agewhen t he t rial is at t hc fag end and I ikely t o conclude 01 t I lC by som e Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh agency 1S requircd whcn t hc JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 299 L t Crl Misc NolVl9909 of2006 171 1 4 1 1 1 0 C I 9 I Z C I ot j 00 7 Z Qm has alreadybeen conduct edby t he police The has filed t he presentpet it ionwit h a praycr for t ransfer of t o som e agency as policewas nol t hc case properlyagainstAbheySingh Chaut ala Vinod Kurnar Arora PardccpGodara and Moham m ad Shah Alam who arc lhc m aln accused involvcd in t he crilninal conspiracyt o com m it m urdcr of ChandSinghBrar Moham m ad Shah Alam who had becn allcgedt o bc associat e of Mukht ar Ansari and a Mafia Don of UP wcre also allcgcdt o be invoived in t hc inurder The grievanceof t hc pet it ioner1S t hat AbheySinghChaut ala was specificallynam ed in t hc FI R as one oft he but no act ion was t aken againsthim by t he policeand siinilarlyno act lon laken againstVinod Kuinar Arora and Pardecp Godara as t heyWcrenot arrcst edby t he policeCVCll Oll dism issal of t heir As far as accused Shah Alam and Sat inderare concerncd t hey died in policccncount ers I nit iallyAbhey SinghChaut ala did 110tJOlll invest igat ionbut subscquent lyhc j oinedt he invcst igat ionon l 2 2008 Vinod Kum ar Arora PardeepGodara Were arrest edby t he policcand t hey WCrC grant cdbail by t he Court and challan was also present edagainstbot h t hcm As far as of AbheySingh Chaut ala 1S concerncd no incriininat ingevidcncc was found againsthiin by t he policc and t herefore no act lot l was t aken lnit iallywhen t he pet it ionwas filed in t he ycar 2006 no docum ent was pJacedOll record wit h t he pet it ionexccpt t hc and t elegram ssent by t he deccascd but CrMisclllo61844 M of2009 was Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh flled aft er a gap ofabout t hree ycars and JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 300 L CrleMisc NolVl79909 of2006 181 variousdoculnent swere placedon record includinglhe replyfiled byVikas Arora 01 Police Sirsa Thc em phasisof t hc pct it ioncrlll t hem ain pct lt lonas well as in t he CrMisc is t hat AbheySinghChaut ala hasspccilicallybecn lnent ioned in t he FI R but policehas not t akcn any act lon againsthiin As pcr rcply subm iHedby t he official hasbccn lncnt ioncd t hat no cvidence has been found in t hc t o conncct AbheySinghChaut ala wit h t he allegedconspiracyt o com m it m urdcr of Chand SinghBrar Now t hc sole quest ionfor considerat ion by t his Court whct her in t his case can be ordered at t his st agewhen t hc t rial is t hat at t he fagend of it s conclusion There is not hingon rccord t o show has not becn fairlyconduct edbyt he policcor t hc accuscd who werc found innocent in t hc invest igat ionwere involvcd in t he m urdcr Learncd counscl for t hc pet it ionerhas not bcen able t o put ort h any cvidence from t hc st at cm ent of t he wit ncsscs t o suggcstt hat t hc conduct ed was not fairlyconduct ed Once t hc has becn by t he policeand t here is no evidence on rccord t hat t he lllVCSllgat lOllwas not fair or im part ialt he pet lt ionerwas at libert yt o avail lcgalrem edycvcn t he t ilne of fram ingof chargeOr recordingof st at em ent soft he wit nessesbut t hosc rcincdics available t o hun werc not availcd Even in t his pet it iont hcre is not hiiigt o show t hat t hc I t lVCSt lgat lOllwas not fair Thcre is no not hingOll rccord t o prove t he involvcm ent of Abhcy SinghChaut ala or t o show t hat he was wrongly found innocent or t he invest igat ionwas not conduct edin fair and im part ial 1 0 0 0 I 9 I Z Q I 08 OO V7 Z a I eam ed counsel for t he pct it ionerhas not becn ablc lo provc t hc m anner Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 1 r 0 C I C I Z I 08 Cn 7 Z 301 1 1 CrlVlisc Nol119909 of 2006 191 involvem ent of Abhey SinghChaut ala There is no groundt O 1SSUC direct ionsfor of t he case when t he t rial is likelyt o conclude There are t ot al 61 wit nesses out ofwhich 32 have alrcadybcen cxam inedand 2 have becn lefl out beingunnecessary and 1 wit ness has cxpiredduringpendencyof and st at em ent s of t he rcm aining wit nessesarc yett o bc recorded I n Raiiv Ranian Sineh Lalat Vllll and anot hcr Vs Union ofI ndia and ot hers Honble 2006 661SCC 613it has bcen hcld by lhc Apcx Court t hat on flling beforc t he com pet cntCout t t he role of Agcncyshould com c t o an cnd and t he only rem edywit h t he Court lSt o dcal wit h t he I nat t crs under Sect ion CrP includingt hc scopc of The relevant obscrvat ionsof 1hcI I onblc Apex Court as underl Ct is t hus clear from t he above j udglnentt hat oncc a chargesheetI S i5led in t he com pet entCourt aft er com plet ionof t he i t hc proccss of lnonit oringby t his Court for t hc purpose of lnakingCBl and ot her invest igat ingagenciesconcernedperforint heir funct ion of int o t he offences concerned com es t o an end and t hcreaft cr it 1S only t he Court it l which t he chargesheetis filed which is t o dcal wit h all m at t ers relat ingt o t he t rial of lhe accused including lnat t ersfallingwit hin t he scopeofSect ion 173 Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh We agree wit h t he above Vlew cxprcssed JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document m r 0 3 C5 I Z C I 08 7 Z m 302 1 9 CrleMisc NoM79909 of2006 1101 1 byt his Court I n our view m onit oringof pendingt rial is subversionof crim inal law as it st andst o m can t hat t hc Court ebehind t he back ofd t he accuscd is cnt cringint o a dialoguewit h t he agcncy Thereforc t here can bc no m onit oringafler t he is Oled The lI onblc Apcx Court in case of St at c of Bihar anot her Vs JAC t hereis Saldanha and ot hers 1980 19 SCC 554 hcld t hat a clealcut and well dem arcat edsphereof act ivit yin t hc I lcld ofl crim e det ect ion and crim e lt was furt her held t hat an offence i s t he fleld exclusivclyrescrved by t he cxccut ive t hrought hc police and St at c Govcrnnlcnt has t hat The role of agency com es t o an cnd when t he challan is before t he Coull and t hc onlyrem edy left is undcr Scct ion 17389CrC The l I onblc Apcx Court observcd as undcrl 46 of an offencc is t he fleld cxclusl vcly reservedbyt he execut ivet hrought he police t he over which vest s in t he St at e Govcrnm entI t is t he bounden dut yof t hc execut ivc t o an offence is a1leged and bringt hc offendcr t o book Once it invcst igat csand Onds an offence havingbeen coinlnit t ed lt I S lt s dut yt o collcct evidence for t he purpose of provingt hc offcnce Oncc Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh t hat is and t he invcst igat ingofficer sublnit s JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 1 0 C3 I C5 I Z I 08 11 2 Z 303 CrVlisc NolVl19909 of 2006 4 I lll t 1 1 reportt o lhc Court requcst ingt hc Court t o t ake oft he offence under Scct ion 190 CrCit s dut ycom es t o an end On a cognizanceof t he offencc bcingt akcn by t he Court t hc policc funct ion of lllvcst igat lollcom es t o an end subj cctt o t hc provision cont ainedin Sect ion 17381 t hen com m cnccs t hc funct ion of t he j udicialy t o det crm lllC whet her an offence has been colnm it t ed and i f whet her by t he person or personschargcdwit h t hc crim e I n t hecircum st ances t he j udgincntand order of t heHigh Court was set aside by t his Court 2t The I I onblc Apcx Court in St at e of Karnat aka Vs and anot her 2002 11 RCR6Crim inall480 observed t hal whileexercisingpowers under Sect ion 482 CrPC t he Court does not funct ion as a Court of appealor reVlS1011 Such powcr is t o be cxerciscd and ex debit o j ust it iaet o do real and subst ant ialj ust iccfor lhc of which alone Court s exist s 1t has furt her bcen held t hat powcrsunder Sect ion 482 CrPC should be used wit h carc caut ion and and for t hc adininist rat ionofj ust iceonly Ol t o prevcntabusc or inj ust icet o t he part y Siinilar vicw has bcen t aken in j udgm entrcport edin MeCAbraham and anot her vs St at e of Maharasht ra and ot hers 2003 1I RCRCrim inall 452 t hat j udicialint erfercnce wit b discrct ion of t hc aut horit yt o arrest or not t o arrest t he accused should not bc cxcrcised lnechanicallybut wit h caut ion Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 304 0 a J CrleMisc NolVl9909 of 2006 1121 94 The 1I onbleApex Court as well as t his Court havc held in variOUS t hat specdyt rial is essent ialingredicntofreasonablcfair andj ustprocedure under Art icle 21 oft he Const it ut ion oflndia andit is a const it ut ional obligat ionof t he St at et o dcvise such a procedure which ensuresspecdyt rial oft he case The Honble Apex Court in Manka Gandhi Vs Union of I ndia AI R 1978 SC 597 and Hussain Ara Khat un Vs St at eof Bihar AlR 1979 SC 1360 has observed t hat spcedyt rial is im plicit in t hc broad sweep and t he cont ext of Art iclc 21 of t hc Const it ut ionof I ndial t he case of St at e of Bihar Vs Maksudan Sineh AI R 1986Pat na 38 t heHonble ApexCourt observed as underl 46 T0 concludeon t his aspectt he answer t o t hc qucst ion posedat vcry out setis renderedin t he afrm at ivc and il held t hat t he const it ut ional rightof t hc accused t o a 1S speedypublic t rial flowingfrorn Art icle 21 of t he Const it ut ion byvirt ue of in all crilninal a t he m andat ei s ident ical in t hc cont cxt wit h const it ut ional guarant cei nsert cd by t he sixt h ainendm entin t he Am erican Const it ut ion 17 ln case t he prayer of t he pet it ionerfor lS allowedat t his st age t he rightof speedyt rial t o t hc accuscd undcr Art iclc 21 of t he Const it ut ion of I ndia shall be violat cd specially when t hc t rial is about t o conclude Alloreover it would bc a dc novo t rial which is not pernlissibleunder law Moreover all t he accusedhave already disclosed t heir dcfencc and have even put suggest ionst o prove wlt nesses Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 1 0 0 0 I C I Z t r I 08 r 7 Z Ll 1 305 0 Crl Misc NolVl79909 of2006 1131 C The agency as well as t hc pet it ionerhavc alrcadycom e t o know about t he defence of t hc accused at t his st age and i f t hc is ordered t hcrc would be paddingin t hc t hc cannot be fair lt has been held in a nulnbcr of t hat no ordcr should be passcdagainstany accuscd wit hout affordingany ofhearing Thc presentpet it ionis pcndingfor t he last m orc t han 3 years t hc allcgcdaccused have not bcen arrayedas Thc llonble SupreineCourt case Devine Ret reat Cent er vs St at e of Kcrala RCR6Crim inal9373 has hcld as underl 46 Wc are concerned wit h t he quest ionas t o whet hcr t he I I ighCourt could havc passeda j udicialorder direct ing invest igat ionagainstt he appellantand it s act ivlt lCS wit hout providingan of beingheard t o l The case in hand is a case wherc t he crim inal law is direct ed t o bc sct in m ot ion 011 t he basis of t hc allcgat ionsm adein anonyinous pct it ionfiled in t hc lI igh Court Nt oj udicialorder can cver bc passedby any Court wit hout providinga rcasonable opport unit yof being hcard t o a person I ikelyt o be affect edbysuch ordcr and part icularlywhen such order rcsult s lt l drast ic consequencesofeffect ingones rcput at ion93 i 0 0 I C5 I Z r I 06 Qo 7 Z Sim ilar obscrvat ionswere inade by t hc I lonble SuprclncCourt in t llc casc of2009RCCrim ina11318 Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document r 0 0 C9 I Z Q I 08 Cn 7 Z 4 1 1 CrlMisc NoMw79909 of2006 1141 I t is clear from t he cit ed above t hat t he Court should not int ervene in t he m at t crs of which under t he schem c of CrPC has been vest ed in t he policeaut horit iesbut an except ionhas also becnm adc whcrcin in ccrt ain circum st ances Coun can int ervenein ordcr t o do j ust icet o t he part iesThis rare int erferenceshould bc t o correct inj us1lcct o t he part y Ol t o check failure of inj ust ice if it is ncccssary 10 prcvcntinj ust icedonc t o t he part yon account of int ervcnt ion of influcnt iai persons I lowevcr t he presentcase t he learned counsel for t he not been able t o m ake out a case where t he Court can int crfcrc in t hc invest igat ionon t he groundt hat t he has not becn fairlyconduct ed and t he salne should bc handed over t o CI 3I or any ot hcr agency The pleafor furt her is not t enable at t hc slagewhen t he t rial is likelyt o conclude 50011 The also not availed t he available at various st agcsof t rial and even at t his st agealso not hinghas been broughton record cven aft er rccordingt he st at em cnt s of 32 wit nesses t hat t he allcged accuscdwcre a part yt o com inission ofinurder or t heywere wronglyfound lllllOCCnt Moreovcr t he ot her accusedare facingt rial since April2006 Kcepingt n view t hc fact s and circum st anccs of t he present case dct ailcd discussion and t he legaJposit ionas lnent ioned above t herelS 110incrit in t he cont cnt ions raised by t he leam ed counsel for t hc pct it ioncr and t hepet it ionbeingdevoid ofany m erit is dism issed NlaYI LI m ghav Rani Anit a 2012.07.05 14: 48 True Scanned Copy of t he Original PHHC, Chandigarh 2010 CHAUDHARYI JUDGE JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document