Allegations against Investigating Officer for not conducting investigation properly in a Rape Case - Court can direct further investigation and even transfer the investigation to an independent agency

PUNJAB AND HARYANA HIGH COURT

Before :- Swatanter Kumar, J.
Criminal Writ Petition No. 393 of 1995. D/d. 30.8.1995.

Urmila Devi - Petitioner
Versus
State of Haryana and others - Respondents

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For the Petitioner :- Mr. R.S. Mamli and Mr. Madan Dev, Advocates.
For the Respondents :- N.S. Bhinder, DA, Haryana and Mr. S.P. Laler, Advocate.

Punjab and Haryana High Court, Chandigarh Judgments

JUDGMENT
Swatanter Kumar, J. (Oral) - This is a criminal writ petition under Articles 226/227 of the Constitution of India for the issuance of an appropriate writ, order or direction to respondents No. 1 and 2 to register a case against respondents No. 4 to 7 on the facts stated in the writ petition.
2. The petitioner Urmila Devi, who is a minor girl of about 14 years of age, is resident of village Dhorang, Tehsil Radaur, District Yamuna Nagar.
It is stated that in the month of June 1994, Jaswant Singh and Kanwar Pal, respondents No. 3 and 4 respectively, came to her house. They mixed up something in the tea and gave it to her. After taking the tea the girl is stated to have lost her consciousness and when she came to her senses, she came to know that she had been raped by respondents No. 3 and 4. Thereafter she got pregnant and she was got aborted in Rama Nursing Home, Radaur. During all this period, being a Harijan girl, she is stated to be under the threat of respondents No. 3 to 5 and, therefore, she could not inform her parents because it was told that if she informed anybody, she would be killed and even false cases would be lodged against her parents. It is further stated in the petition that respondents No. 3 to 7, are politically influential and financially sound persons and FIR No. 16 dated 9.3.1995 could be lodged only after great struggle, under Sections 376, 316, 506 and 120-B of Indian Penal Code against respondents No. 3 to 7 who had been continuously harassing the family of the petitioner and were responsible for raping the minor girl and having her abortion done in the said Nursing Home. The petitioner was examined in the Civil Hospital in pursuance to the above said FIR on 12.3.1995 and the doctor opined as under:-
    "In my opinion hence there are signs of previous sex intercourse and possibly abortion."
3. In spite of the reasonable evidence being available the police under the influence of respondents No. 3 to 7, with ulterior motive and in order to favour these persons, challaned only Jaswant Singh, respondent No. 3, and closed the case against other respondents stating that the case was found to be false against them.
4. To this writ petition, separate reply has been filed on behalf of respondents No. 1 and 2. Respondents No. 4 to 6 have filed reply today in court, which is taken on record.
5. The learned counsel for the State of Haryana has informed the court, on instructions from S.I. Pardeep Singh, SHO Police Station, Sadar, Yamuna Nagar, that challan has been filed and Jaswant Singh, respondent No. 3, has been named as an accused and case vis-a-vis other respondents have been found to be false. That, forced with this situation, the petitioner has filed the present writ petition directing a case to be registered against respondents No. 3 to 7.
6. Vide order dated 10th August 1995, the court had directed Dr. Saini of Rama Nursing Home, Radaur, to be present in Court today. The said Dr. Suresh Chand Saini was asked certain questions by the Court. Though initially he avoided the questions and declined to give truthful answers, but, subsequently, he stated the truth, specially after he was confronted with the prescriptions CW 1/1 and CW 1/2, which are written by him, and at the back of these prescriptions there were calculations made by the same doctor with regard to the charges for performing an abortion upon the minor girl. Dr. Saini has stated that Jaswant Singh, Kanwar Pal and Rishi Pal, that is respondents No. 3 to 5 in this petition, had come to him for getting this minor girl aborted. He conducted the abortion upon this girl, provided her medication including strong antibiotics and calculated a fee of Rs. 2,250/- for this purpose, though, according to the doctor, he was only paid a sum of Rs. 400/-. It is relevant to point out that Exhibits CW 1/1 and CW 1/2 are the prescriptions which are printed carrying the name of Rama Nursing Home, of which Dr. Saini is the proprietor. Thus, from the above facts disclosed by Dr. Saini and the report of the doctor from the Civil Hospital it is clear that the version given by the complainant is neither false nor improbable in its entirety. On the contrary, two facts stand clearly established: that this minor girl was subjected to sexual intercourse and then she was aborted. According to the complainant, respondents No. 3 to 5 are responsible for this heinous crime and it has been so stated by her before the police as well as in the petition before this Court.
7. Police is an investigating agency, and if the said investigating agency acts with complete unfairness and shelters the guilt, the basic faith of the public in the police is shattered. The responsibility and duty that police owes not only to the system of investigation and judicial scrutiny in our country, but to the public at large and the least that is expected is that the investigation will be fair and in consonance with the rules of prudence and reasonableness. The police is a protector of law and order and is not an invader of the rights of the people, and specially the poor strata of the society. Irrespective of the financial or social status of an individual every person has a right to be protected at the hands of the police and law maintaining agencies and if such protection is infringed their grievances must be investigated by these agencies and guilty brought to book.
8. From the allegations made in the petition, the primary evidence which is available with the investigating agency and the statement of Dr. Saini before this court hardly leave any doubt that the respondents are liable to be proceeded against in accordance with law. The investigating agency is not concerned with the fact whether ultimately the accused will be guilty of offence for which he is challaned or not. The domain of investigating agency ends upon presentation of challan and, therefore, it falls in the judicial domain to adjudicate finally with regard to the guilt or otherwise of the accused. It will be too far-fetched to say that there was no material evidence with the prosecution to challan the respondents and specially respondents Nos. 3 to 5. It is stated at the Bar by Mr. N.S. Bhinder, upon instructions from S.I. Pardeep Singh, that Mr. Nar Singh, Sub Inspector, Station House Officer, Radaur, had conducted the investigation of this case earlier. It must be noticed that the investigation conducted by this officer (S.I. Nar Singh) smacks of unfairness and is certainly an abuse of his authority. Dr. Suresh Chand Saini told lie in the Court in the beginning but came out with the truth at a subsequent stage and fairly and clearly disclosed the entire case before this Court, which shows that Sub Inspector Nar Singh, the investigating officer of this case, has conducted the investigation in a very irresponsible manner and abused his authority.
9. The present petition had been filed with a prayer that respondents No. 1 and 2 be directed to lodge the FIR against respondents No. 4 to 7 for the facts stated in the writ petition as well as the other evidence that has been collected during the investigation.
10. The authority of the police refusing to register a case /FIR and to conduct proper investigation came up for scrutiny in various cases before the Hon'ble Supreme Court as well as this Court. The settled position of law that emerges out has been discussed in detail in the cases of Naurata Ram v. The State of Haryana and others, CWP No. 11811 of 1994 and Kehar Singh and others v. The State of Haryana and others, CWP No. 16126 of 1994. It was held that once the facts stated in a given case constitute a cognizable offence, the police has no option but to register an FIR and no rule of discretion is permissible at that stage to the police. Thereafter to conduct a fair and proper investigation is the responsibility of the police. The courts would normally refrain from interfering at the stage of investigation, but certainly such an exercise of authority by the police is not beyond judicial review. The courts must and have to check abuse of authority by the police and specially when it will result in providing a victim of his/her redressal of grievances and have the guilty punished in accordance with law.
11. In the present case one cannot understand as to how Kanwar Pal, respondent No. 4, who is stated to have actually committed the rape along with Jaswant Singh, respondent No. 3 on the petitioner, could be treated on a different footing that Jaswant Singh, who happens to be the servant of Rishi Pal, respondent No. 5. If the petitioner had to be disbelieved then even Jaswant Singh could not have committed any offence. The material with the police is that of the prosecutrix's medical evidence, the statements of the father and the relatives of this ill-fated girl. These statements, the medical evidence and specially the facts disclosed by Dr. Saini before this Court leave no doubt that respondents No. 3 to 5 have, prima facie, committed offences. They are responsible even for destroying evidence as stated by Dr. Saini. Even if Rishi Pal was not initially present at the time of rape, his role subsequent thereto certainly needs to be condemned. He is ex-Sarpanch of village Dhorang and one would least expect from a Sarpanch of the village that he would destroy or cause to be destroyed evidence of such a heinous crime.
12. At this stage this Court is only concerned with one fact whether there is prima facie evidence against the respondents connecting them with the crime or not. If prima facie evidence is there, then the police has no jurisdiction to absolve these people of colourable exercise of its power and just on the basis that the person who has suffered, is a poor minor girl of a labourer, and the persons who are stated to have committed the offences are politically sound and financially resourceful. It is a matter of great pain that the police has shown complete irresponsibility in the present case and has failed to challan the persons who ought to have been challaned in view of the prima facie evidence which had been placed on record and which is available with the police. The very material witness, Dr. Suresh Chand Saini, has also spoken the truth. In all fairness, the investigating officer ought to have recorded the statement of Dr. Suresh Chand Saini truthfully and must not have made any attempts to investigate the matter in an unfair manner and to give undue protection to the powerful respondents No. 3 to 5.
13. After the writ petition had been filed before this court, it appears that the respondents have filed the challan against respondent No. 4 alone, who is a servant of respondents No. 3 and 5. The filing of the challan would not frustrate this writ petition and specially in view of the facts and circumstances stated supra. The provisions of sub-section (8) of Section 173 of the Criminal Procedure Code clearly empower further investigation even after the filing of a report. Under Sub-Section (2) of Section 173 of the Code, the Officer-in-charge can obtain further evidence, oral or ddocumentary, and can file a further report before the learned Magistrate. Fresh evidence and even the addition of names in the second report is permissible in law : refer 1984 Crl. L.J. 239. The Supreme Court in the case of Kashmiri Devi v. Delhi Administration, AIR 1983 SC 1323, has settled the law that where allegations have been made against the erring officer and a prima facie case is made out not only that the court can direct further investigation but can even transfer investigation to an independent agency. The present case is one of the rare cases where if this court does not interfere, it will certainly result in miscarriage of justice.
14. In view of the above discussion and in the circumstances of this case, it is directed that the Inspector General of Police, Haryana, shall depute, within one week from the date he receives a copy of this order, an independent and responsible investigating officer to investigate this matter fully and diligently, and the police officer so appointed shall submit the suppelementary challan, second report, within thirty days thereafter. Upon presentation of the second report/supplementary challan, the learned Magistrate shall procoeed with the case in accordance with law. It is further directed that the Inspector General of Police, Haryana, will look into this matter, and take such action as is permissible in law against Mr. Nar Singh, Sub Inspector, SHO, Police Station Radaur, at the relevant time.

15. It must not go unnoticed that on the allegations stated before this court and primary evidence placed on record, it is clear that this minor, poor and young girl has been made to run from pillar to post and has been made to suffer by none else but the Sarpanch, his family members, their servant, and to add to the agony, by the concerned police authorities. It is a fit case where the petitioner should be granted compensation. It is, therefore, directed that the petitioner shall be entitled to a compensation of Rs. 5,000/- initially to be paid by State. This will be adjusted towards any claim or compensation which the petitioner might be awarded, if at all, by the competent Court.
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