Madhya Pradesh High Court
Pawan Kumar Kurmi vs The State Of Madhya Pradesh on 14 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:51667
1 W.P. No.6380/2009
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 14th OF OCTOBER, 2024
WRIT PETITION No. 6380 of 2009
PAWAN KUMAR KURMI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Aseem Trivedi - Advocate for the petitioner.
Shri Abhishek Singh - Government Advocate for the respondents/State.
............................................................................................................................................
ORDER
This petition under Article 226 of Constitution of India has been
filed seeking following relief(s):-
(i) The Hon‟ble Court pleased to direct the
Respondent No.1 for independent enquiry by
the Gazetted Officer or CBI in respect of
petition on the basis of material produced by
the petitioner before this Hon‟ble Court
concerned with the petitioner and suitable
action after the enquiry report.
(ii) The Hon‟ble Court pleased to direct the
respondent provide the protection of his life and
liberty and order in respect of petitioner he not
harassed by the police authority.
(iii) The Hon‟ble Court may deem fit and proper in
the facts and circumstances of the case.
(iv) The Hon‟ble Court please to direct to
respondent no.4 S.P. Sagar for Khatma
proceeding after considering of statements
given by the witnesses before the session court
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in the ends of justice.
2. It is submitted by counsel for petitioner that petitioner is a
practicing Advocate. A false FIR No.103/2009 was registered by Police
Station Baheriya, District Sagar for offence under Sections 307, 147,
148, 149, 294, 323, 324, 450, 506 of IPC. The name of petitioner has
been falsely implicated because there are two fractions in the village and
the petitioner is a counsel for some of the members of one fraction of
village. It was falsely alleged that petitioner had assaulted Jai Singh by
Lathis. It is submitted that on 06/05/2009, petitioner had appeared
before the Civil Court and therefore, it is clear that he was not present
on the spot. Affidavits were also given by some of the witnesses to show
that he was not present on the spot but he was present in the Court. It is
further submitted that by order dated 03/08/2009 passed by Co-ordinate
Bench of this Court, arrest of petitioner in Crime No.103/2009 was
stayed. It appears that charge-sheet was filed by Police against
remaining accused persons. Witnesses have been examined and they
have turned hostile and accordingly, it is submitted that no useful
purpose would be served by compelling the petitioner to undergo the
trial.
3. Per contra, petition is vehemently opposed by counsel for the
State. It is submitted that as per the written information received from
SHO, Police Station Baheriya, District Sagar, the case was fixed before
the Trial Court on 30/09/2024 but the case has been adjourned. It is
further submitted that since one of the injured has expired, therefore
offence under Section 302 of IPC was added.
4. Heard learned counsel for the parties.
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5. The present petition has been filed for quashment of FIR or for
transfer of investigation to CBI mainly on the ground that petitioner is
an active practitioner and on the date of incident, he was not present on
the spot and he was present in the Court premises and had appeared in
some of the cases.
6. So far as the ground of plea of alibi is concerned, it is required to
be proved by accused by leading cogent evidence. Plea of alibi means
that it was humanly impossible for the accused to remain present at the
place of incident. As per FIR in Crime No.103/2009, incident took place
in village Gidwani. Although counsel for petitioner was not in a position
to point out the distance between village Gidwani and District Court
Sagar but petitioner has filed a copy of news clipping published in
Dainik Bhaskar on 07/09/2009 as Annexure-P/21, in which it is
mentioned that the village Gidwani is situated at a distance of 10 Kms
from the district headquarters. Therefore, it is clear that distance of
village Gidwani is approximately 10 Kms from Sagar. From the FIR in
Crime No.103/2009, it is evident that the incident took place on
06/05/2009 at about 10:30 AM.
7. Petitioner has relied upon some of the order-sheets of the Trial
Court to show that he was present in the Court premises on 06/05/2009.
8. In the order-sheets which have been filed and were recorded by
different Courts on 06/05/2009, time of recording the said order-sheets
has not been mentioned except in order dated 06/05/2009 which is at
page 48 of the Writ Petition, in which petitioner has mentioned the time
as 11 AM under his signature. It appears that the Court was vacant and
the petitioner had filed an application for exemption from personal
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appearance of the accused which was allowed. However, petitioner has
put the time as 11 AM below his signature. Why petitioner has put the
time 11 AM is known to the petitioner only. Furthermore, whenever
Courts are vacant, files are sent to other Courts which are generally
never taken at 11 AM.
9. Be that whatever it may be.
10. Even assuming that the order dated 06/05/2009 was written at 11
AM but since the distance of Gidwani is only 10 Kms from Sagar, then
it was humanly possible for the petitioner to attend the case at 11 AM.
11. Under these circumstances, this Court is of considered opinion
that while exercising power under Article 226 of Constitution of India,
Court cannot accept the defence of plea of alibi.
12. So far as the contention of counsel for petitioner that since the co-
accused persons have been acquitted, therefore no useful purpose would
be served by compelling the petitioner to undergo the trial is concerned,
the same is misconceived.
13. Petitioner has relied upon the judgment passed by Supreme Court
in the case of Central Bureau of Investigation Vs. Akhilesh Singh
reported in (2005) 1 SCC 478. In the said case, charge against the
respondent was that he was involved in conspiracy. The main accused
who was alleged to have hatched the conspiracy and had motive to kill
the deceased was already discharged and that matter had attained
finality and since no other material was placed before the Court to prove
the complicity of respondent Akhilesh Singh and no direct evidence was
relied upon by the prosecution to prove that he had supplied weapons
and rendered assistance to assailants in carrying out the common object
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of killing the deceased, then it was held that High Court had rightly
quashed the charges framed against the respondent for offence under
Section 120-B read with Section 302 and Section 109 of IPC.
14. Thus, it is clear that a person against whom identical charges were
leveled was already discharged and in the case of Akhilesh Singh
(supra) benefit of said order was extended to respondent Akhilesh
Singh. However, in the present case, allegations are that the petitioner
had actually participated in the assault and had assaulted one Jai Singh
who ultimately died and for whom, offence under Section 302 of IPC
was added. Therefore, facts of the present case are distinguishable from
the facts of Akhilesh Singh (supra).
15. Petitioner has also relied upon the judgment passed by Punjab and
Haryana High Court in the case of Rashpal Singh Vs. State of Punjab
and Another in CRM No.M36584 of 2011, in which the matter was
amicably settled by the parties.
16. Admittedly, offence under Section 302 of IPC is not
compoundable. Furthermore, co-accused persons were acquitted
because the witnesses had turned hostile.
17. The Supreme Court in the case of A.T. Mydeen Vs. The Asstt.
Commissioner, Customs Department, decided on 31/10/2021 in
Cr.A. No.1306 of 2021 has held that the evidence lead by the
prosecution in the trial of co-accused cannot be read in the case of
another accused. Therefore, the contention of counsel for petitioner that
since other co-accused persons have been acquitted, therefore FIR
against petitioner should also be quashed, is misconceived and is hereby
rejected.
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18. So far as the enmity is concerned, it is a double-edged weapon
and if the enmity can be a ground to falsely implicate the accused, then
at the same time, it would also be a ground to commit offence.
Therefore, it is a disputed question of fact which cannot be adjudicated
by this Court while exercising power under Article 226 of Constitution
of India.
19. Furthermore, the petitioner has no right to seek transfer of
investigation.
20. The Supreme Court in the case of Romila Thapar and others vs.
Union of India and others reported in (2018) 10 SCC 753 has held as
under:-
“23. After having given our anxious consideration to the
rival submissions and upon perusing the pleadings and
documents produced by both the sides, coupled with the
fact that now four named accused have approached this
Court and have asked for being transposed as writ
petitioners, the following broad points may arise for our
consideration:
23.1. (i) Should the investigating agency be changed at
the behest of the named five accused?
23.2. (ii) If the answer to Point (i) is in the negative, can a
prayer of the same nature be entertained at the behest of
the next friend of the accused or in the garb of PIL?
23.3. (iii) If the answer to Questions (i) and/or (ii) above,
is in the affirmative, have the petitioners made out a case
for the relief of appointing Special Investigating Team or
directing the court-monitored investigation by an
independent investigating agency?
23.4. (iv) Can the accused person be released merely on
the basis of the perception of his next friend (writ
petitioners) that he is an innocent and law abiding person?
24. Turning to the first point, we are of the considered
opinion that the issue is no more res integra. In Narmada
Bai v. State of Gujarat, in para 64, this Court restated that
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it is trite law that the accused persons do not have a say in
the matter of appointment of investigating agency.
Further, the accused persons cannot choose as to which
investigating agency must investigate the offence
committed by them. Para 64 of this decision reads thus:
(SCC p. 100)
“64. … It is trite law that the accused persons do not
have a say in the matter of appointment of an
investigating agency. The accused persons cannot
choose as to which investigating agency must
investigate the alleged offence committed by them.”
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the
Court restated that the accused had no right with reference
to the manner of investigation or mode of prosecution.
Para 68 of this judgment reads thus: (SCC p. 40)
“68. The accused has no right with reference to the
manner of investigation or mode of prosecution.
Similar is the law laid down by this Court in Union of
India v. W.N. Chadha, Mayawati v. Union of India,
Dinubhai Boghabhai Solanki v. State of Gujarat, CBI
v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S.
Chowdhary.”
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E.
Sivakumar v. Union of India, while dealing with the
appeal preferred by the “accused” challenging the order
of the High Court directing investigation by CBI, in para
10 observed: (SCC pp. 370-71)
“10. As regards the second ground urged by the
petitioner, we find that even this aspect has been duly
considered in the impugned judgment. In para 129 of
the impugned judgment, reliance has been placed on
Dinubhai Boghabhai Solanki v. State of Gujarat,
wherein it has been held that in a writ petition seeking
impartial investigation, the accused was not entitled to
opportunity of hearing as a matter of course. Reliance
has also been placed on Narender G. Goel v. State of
Maharashtra, in particular, para 11 of the reported
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decision wherein the Court observed that it is well
settled that the accused has no right to be heard at the
stage of investigation. By entrusting the investigation
to CBI which, as aforesaid, was imperative in the
peculiar facts of the present case, the fact that the
petitioner was not impleaded as a party in the writ
petition or for that matter, was not heard, in our
opinion, will be of no avail. That per se cannot be the
basis to label the impugned judgment as a nullity.”
27. This Court in Divine Retreat Centre v. State of Kerala,
has enunciated that the High Court in exercise of its
inherent jurisdiction cannot change the investigating
officer in the midstream and appoint an investigating
officer of its own choice to investigate into a crime on
whatsoever basis. The Court made it amply clear that
neither the accused nor the complainant or informant are
entitled to choose their own investigating agency, to
investigate the crime, in which they are interested. The
Court then went on to clarify that the High Court in
exercise of its power under Article 226 of the Constitution
can always issue appropriate directions at the instance of
the aggrieved person if the High Court is convinced that
the power of investigation has been exercised by the
investigating officer mala fide.
28. Be that as it may, it will be useful to advert to the
exposition in State of West Bengal and Ors. Vs.
Committee for Protection of Democratic Rights, West
Bengal and Ors.13 In paragraph 70 of the said decision,
the Constitution Bench observed thus:
“70. Before parting with the case, we deem it necessary
to emphasise that despite wide powers conferred by
Articles 32 13 (2010) 3 SCC 571 38 and 226 of the
Constitution, while passing any order, the Courts must
bear in mind certain self-imposed limitations on the
exercise of these Constitutional powers. The very
plenitude of the power under the said articles requires
great caution in its exercise. Insofar as the question of
issuing a direction to the CBI to conduct investigation
in a case is concerned, although no inflexible
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guidelines can be laid down to decide whether or not
such power should be exercised but time and again it
has been reiterated that such an order is not to be
passed as a matter of routine or merely because a party
has levelled some allegations against the local police.
This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in investigations or where the incident may
have national and international ramifications or where
such an order may be necessary for doing complete
justice and enforcing the fundamental rights. Otherwise
the CBI would be flooded with a large number of cases
and with limited resources, may find it difficult to
properly investigate even serious cases and in the
process lose its credibility and purpose with
unsatisfactory investigations.”
29. In the present case, except pointing out some
circumstances to question the manner of arrest of the five
named accused sans any legal evidence to link them with
the crime under investigation, no specific material facts
and particulars are found in the petition about mala fide
exercise of power by the investigating officer. A vague
and unsubstantiated assertion in that regard is not enough.
39 Rather, averment in the petition as filed was to buttress
the reliefs initially prayed (mentioned in para 7 above) –
regarding the manner in which arrest was made. Further,
the plea of the petitioners of lack of evidence against the
named accused (A16 to A20) has been seriously disputed
by the Investigating Agency and have commended us to
the material already gathered during the ongoing
investigation which according to them indicates
complicity of the said accused in the commission of
crime. Upon perusal of the said material, we are of the
considered opinion that it is not a case of arrest because of
mere dissenting views expressed or difference in the
political ideology of the named accused, but concerning
their link with the members of the banned organization
and its activities. This is not the stage where the efficacy
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of the material or sufficiency thereof can be evaluated nor
it is possible to enquire into whether the same is genuine
or fabricated. We do not wish to dilate on this matter any
further lest it would cause prejudice to the named accused
and including the co-accused who are not before the
Court. Admittedly, the named accused have already
resorted to legal 40 remedies before the jurisdictional
Court and the same are pending. If so, they can avail of
such remedies as may be permissible in law before the
jurisdictional courts at different stages during the
investigation as well as the trial of the offence under
investigation. During the investigation, when they would
be produced before the Court for obtaining remand by the
Police or by way of application for grant of bail, and if
they are so advised, they can also opt for remedy of
discharge at the appropriate stage or quashing of criminal
case if there is no legal evidence, whatsoever, to indicate
their complicity in the subject crime.
30. In view of the above, it is clear that the consistent
view of this Court is that the accused cannot ask for
changing the Investigating Agency or to do investigation
in a particular manner including for Court monitored
investigation…………………”
21. The Supreme Court in the case of Dinubhai Boghabhai Solanki
v. State of Gujarat, reported in (2014) 4 SCC 626 has held as under:-
“50. In W.N. Chadha [Union of India v. W.N. Chadha,
1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , the
High Court had quashed and set aside the order passed
by the Special Judge in charge of CBI matters issuing
the order rogatory, on the application of a named
accused in the FIR, Mr W.N. Chadha. The High Court
held that the order issuing letter rogatory was passed in
breach of principles of natural justice. In appeal, this
Court held as follows: (SCC pp. 290-91 & 293, paras 89,
92 & 98)
“89. Applying the above principle, it may be
held that when the investigating officer is not
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deciding any matter except collecting the materials
for ascertaining whether a prima facie case is made
out or not and a full enquiry in case of filing a report
under Section 173(2) follows in a trial before the
Court or Tribunal pursuant to the filing of the
report, 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 recognise. The question is not
whether audi alteram partem is implicit, but whether
the occasion for its attraction exists at all.
***
92. More so, the accused has no right to have any
say as regards the manner and method of
investigation. Save under certain exceptions under
the entire scheme of the Code, the accused has no
participation as a matter of right during the course
of the investigation of a case instituted on a police
report till the investigation culminates in filing of a
final report under Section 173(2) of the Code or in a
proceeding instituted otherwise than on a police
report till the process is issued under Section 204 of
the Code, as the case may be. Even in cases where
cognizance of an offence is taken on a complaint
notwithstanding that the said offence is triable by a
Magistrate or triable exclusively by the Court of
Sessions, the accused has no right to have
participation till the process is issued. In case the
issue of process is postponed as contemplated under
Section 202 of the Code, the accused may attend the
subsequent inquiry but cannot participate. There are
various judicial pronouncements to this effect but
we feel that it is not necessary to recapitulate those
decisions. At the same time, we would like to point
out that there are certain provisions under the Code
empowering the Magistrate to give an opportunity
of being heard under certain specified
circumstances.
***
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98. If prior notice and an opportunity of hearing
are to be given to an accused in every criminal case
before taking any action against him, such a
procedure would frustrate the proceedings, obstruct
the taking of prompt action as law demands, defeat
the ends of justice and make the provisions of law
relating to the investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant
statutory provisions relating to the procedure of
investigation does not attract such a course in the
absence of any statutory obligation to the contrary.”
These observations make it abundantly clear that it
would not be necessary to give an opportunity of hearing
to the proposed accused as a matter of course. The Court
cautioned that if prior notice and an opportunity of
hearing have to be given in every criminal case before
taking any action against the accused person, it would
frustrate the entire objective of an effective
investigation. In the present case, the appellant was not
even an accused at the time when the impugned order
was passed by the High Court. Finger of suspicion had
been pointed at the appellant by independent witnesses
as well as by the grieved father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh
Gandhi, (1996) 11 SCC 253 : 1997 SCC (Cri) 88] , this
Court again reiterated the law as follows: (SCC pp. 256-
57, para 8)
“8. There is no merit in the pleas raised by the
first respondent either. The decision to investigate
or the decision on the agency which should
investigate, does not attract principles of natural
justice. The accused cannot have a say in who
should investigate the offences he is charged with.
We also fail to see any provision of law for
recording reasons for such a decision. … There is
no provision in law under which, while granting
consent or extending the powers and jurisdiction of
the Delhi Special Police Establishment to the
specified State and to any specified case any reasons
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13 W.P. No.6380/2009
are required to be recorded on the face of the
notification. The learned Single Judge of the Patna
High Court was clearly in error in holding so. If
investigation by the local police is not satisfactory, a
further investigation is not precluded. In the present
case the material on record shows that the
investigation by the local police was not
satisfactory. In fact the local police had filed a final
report before the Chief Judicial Magistrate,
Dhanbad. The report, however, was pending and
had not been accepted when the Central
Government with the consent of the State
Government issued the impugned notification. As a
result, CBI has been directed to further investigate
the offences registered under the said FIR with the
consent of the State Government and in accordance
with law. Under Section 173(8) CrPC, 1973 also,
there is an analogous provision for further
investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the
Magistrate.”
The aforesaid observations would clearly support the
course adopted by the High Court in this matter. We
have earlier noticed that the High Court had initially
directed that the investigation be carried under the
supervision of the Special Commissioner of Police,
Crime Branch, of the rank of the Additional Director
General of Police. It was only when the High Court was
of the opinion that even further investigation was not
impartial, it was transferred to CBI.
52. Again in Sri Bhagwan Samardha [Sri Bhagwan
Samardha Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC
(Cri) 1047] , this Court observed as follows: (SCC pp.
742-43, paras 10-11)
“10. Power of the police to conduct further
investigation, after laying final report, is recognised
under Section 173(8) of the Code of Criminal
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Procedure. Even after the court took cognizance of
any offence on the strength of the police report first
submitted, it is open to the police to conduct further
investigation. This has been so stated by this Court
in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2
SCC 322 : 1979 SCC (Cri) 479] . The only rider
provided by the aforesaid decision is that it would
be desirable that the police should inform the court
and seek formal permission to make further
investigation.
11. In such a situation the power of the court to
direct the police to conduct further investigation
cannot have any inhibition. There is nothing in
Section 173(8) to suggest that the court is obliged to
hear the accused before any such direction is made.
Casting of any such obligation on the court would
only result in encumbering the court with the burden
of searching for all the potential accused to be
afforded with the opportunity of being heard. As the
law does not require it, we would not burden the
Magistrate with such an obligation.”
These observations also make it clear that there was no
obligation for the High Court to either hear or to make the
appellant a party to the proceedings before directing that
the investigation be conducted by CBI.
53. We had earlier noticed that the High Court had
come to the prima facie conclusion that the investigation
conducted by the police was with the motive to give a
clean chit to the appellant, in spite of the statements made
by the independent witnesses as well as the allegations
made by the father of the deceased. The legal position has
been reiterated by this Court in Narender G.
Goel [Narender G. Goel v. State of Maharashtra, (2009) 6
SCC 65 : (2009) 2 SCC (Cri) 933] : (SCC pp. 68-69, paras
11-13)
“11. It is well settled that the accused has no
right to be heard at the stage of investigation. The
prosecution will however have to prove its case at
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the trial when the accused will have full opportunity
to rebut/question the validity and authenticity of the
prosecution case. In Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P. [Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999
SCC (Cri) 1047] this Court observed: (SCC p. 743,
para 11)
„11. … There is nothing in Section 173(8) to
suggest that the court is obliged to hear the accused
before any such direction is made. Casting of any
such obligation on the court would only result in
encumbering the court with the burden of searching
for all the potential accused to be afforded with the
opportunity of being heard.‟
12. The accused can certainly avail himself of an
opportunity to cross-examine and/or otherwise
controvert the authenticity, admissibility or legal
significance of material evidence gathered in the
course of further investigations. Further in light of
the views expressed by the investigating officer in
his affidavit before the High Court, it is apparent
that the investigating authorities would inevitably
have conducted further investigation with the aid of
CFS under Section 173(8) of the Code.
13. We are of the view that what is the
evidentiary value can be tested during the trial. At
this juncture it would not be proper to interfere in
the matter.”
22. This Court in the case of Prabal Dogra vs. Superintendent of
Police, Gwalior and State of M.P. by order dated 30.11.2017 passed in
M.Cr.C.No.10446/2017 has held that accused has no say in the matter
of investigation.
23. As no case is made out for quashment of FIR in Crime
No.103/2009 registered at Police Station Baheriya, District Sagar,
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16 W.P. No.6380/2009
accordingly, petition fails and is hereby dismissed.
24. Interim order dated 03/08/2009 is hereby vacated.
25. Petitioner is directed to surrender before the Trial Court on
04/11/2024, failing which, the Trial Court shall be free to issue warrant
of arrest against the petitioner.
(G.S. AHLUWALIA)
JUDGE
S.M.
Digitally signed by
SHUBHANKAR MISHRA
Date: 2024.10.17 10:38:24
+05’30’