Mamta Ali vs State Of Chhattisgarh And Others
2021 Latest Caselaw 161 Chatt

                                       1

                                                                          NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.2300 of 2008
    Mamta Ali, W/o. Dilshad Ali, Aged about 33 years,
    Sub­Inspector, P.S. Lalpur, District Bilaspur, R/o.
    Surya Apartment, Vyapar Vihar, Bilaspur (CG)
                                                             ­­­­ Petitioner
                                  Versus
  1. State   of   Chhattisgarh,  Through   the   Secretary,
     Department of Home, Mantralaya, D.K.S. Bhawan, Raipur.
  2. The Director General of Police, Police Headquarter,
     Raipur (CG)
  3. The Inspector General of Police, Bilaspur (CG)
  4. The Superintendent           of       Police,     Bilaspur,    District
     Bilaspur (CG)
                                                             ­­­­ Respondents

For Petitioner : Mr.Prateek Sharma, Advocate For Respondents : Mr.Mateen Siddique, Dy.A.G.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

7.6.2021

1. The petitioner at the relevant point of time being

Sub­Inspector investigated an offence against accused­

Baila @ Dashru for offence under Section 20(b)(ii)(B)

of the Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter called as 'NDPS Act') and seized 10

kg. of ganja from that accused person, she charge­

sheeted the accused person on 22.1.2008 and

ultimately, by the judgment dated 27.3.2008 the

accused therein was acquitted from the charges by the

Special Court (NDPS Act), Bilaspur. During the course

of trial, learned Special Judge on 22.1.2008 i.e. on

the date of filing charge­sheet also issued show­cause

notice to the petitioner that she has submitted false

and forged documents (seizure and panchnama

documents), which is punishable under Section 193 of

the CrPC, to which the petitioner replied on 2.2.2008.

Learned Special Judge also recorded in order­sheet

that the petitioner has already filed reply and

necessary order will be passed on the petitioner's

objection to said notice on the date of judgment, but

learned Special Judge passed the judgment of acquittal

on 27.3.2008 acquitting the accused therein, but it is

the case of the petitioner that she has not been heard

and direction has been issued to prosecute the

petitioner under Section 193 of the IPC and also to

proceed departmentally against her. Said

observations / directions have been questioned by the

petitioner in this writ petition.

2. Mr.Prateek Sharma, learned counsel for the petitioner,

would submit that the petitioner was noticed without

initiation of trial on 22.1.2008, which she has

replied competently that no forged document has been

produced by her though learned Special Judge recorded

in his order­sheet that it will be decided at the time

of final hearing, but adverse observation / direction

has been made against her, but no opportunity of

hearing was afforded to her while passing the adverse

remark in the judgment dated 27.3.2008. He would

further submit that for constituting an offence under

Section 193 of the IPC, the procedure prescribed under

Section 195 of the CrPC has to be followed and unless

the procedure prescribed under Section 195 CrPC is

followed, no blanket direction to the Chief Judicial

Magistrate for registering an offence under Section

193 of the IPC can be issued and therefore, the

impugned adverse remark made against the petitioner

deserves to be set aside.

3. On the other hand, Mr.Matin Siddiqui, learned Deputy

Advocate General for the respondents/State, would

support the impugned order/remark.

4. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

5. A careful perusal of the record would show that the

petitioner being investigating officer has charge­

sheeted the accused therein for offence under Section

20(b)(ii)(B) of the NDPS Act in which certain

discrepancies in seizure and panchnama were noticed by

learned Special Judge and directed vide Annexure P­6

at page 27 of paper­book that it will be decided at

the time of final hearing. Learned Special Judge

delivered the judgment on 27.3.2008 and acquitted the

accused therein, but in para­14 made the following

observation :­

14& foospuk vf/kdkjh mi fujh{kd eerk vyh gh nks"keqfDr ds fy, ftEesnkj gS- mlus fjek.M LVst ds izFke fnol fnukad [email protected]@2007 dks bl U;k;ky; esa vfHk;qDr dks dsl Mk;jh ds lkFk is'k fd;k Fkk- iapukek o tCrh esa xokgksa dk uke mYys[k ugha Fkk- U;k;ky; }kjk ml laca/k esa fjek.M vkns'k i= esa mYys[k fd;k x;k rFkk iapukek tCrh tgka xokgksa dk uke mYys[k ugha Fkk "XXXXXX" ls fpUgkafdr fd;k x;k- fnukad [email protected]@2008 dks pkyku is'k gksus ij fpUgkafdr ds cxy esa fy[kk gksuk ik, tkus ij /kkjk 193 Hkk0na0la0 ds rgr dkj.k crkvks uksfVl tkjh fd;k x;k- tokc esa badkj fd;k x;k- U;k;ky;hu lk{; esa Hkh badkj fd;k x;k- ml iapukek tCrh oxSjg dks dksbZ lkekU; cqf) okyk O;fDr Hkh ns[ksxk rks ;g crk nsxk fd ckn esa nwljh isu] nwljh L;kgh ls mYys[k gS- bl dkj.k mi fujh{kd eerk vyh }kjk fn, x, tokc ,oa ml laca/k esa U;k;ky;hu izfrijh{k.k esa fd;k x;k badkj ekU; ;ksX; ugha gS- blds vykok v0lk0&1 dksVokj 'khrynkl us vius izfrijh{k.k dh df.Mdk&7 esa crk;k gS fd nwljs fnu Fkkuk esa gLrk{kj djk;k x;k Fkk- ,d&nks QkeZ cus Fks] ckdh ugha cus Fks- v0lk0&3 ghjkjke mi ljiap us vius izfrijh{k.k dh df.Mdk&3 esa crk;k gS fd ftl fnu vfHk;qder dks idM+k x;k Fkk] mlds 1&2 fnu ckn Fkkuk esa gLrk{kj djk, x, Fks- Lo;a iz/kku vkj{k.k eksgfjZj ijljke us vius izfrijh{k.k esa crk;k gS fd izn'kZ [email protected] dk ikorh nsrs le; mlesa jks0lk0 fnukad vafdr ugha Fkk] ftl ij U;k;ky; }kjk "XXXXXX" fpUgkafdr fd;k x;k Fkk- mlesa ckn esa Fkkuk izHkkjh }kjk ntZ fd;k x;k gS- izn'kZ [email protected] iVokjh }kjk rS;kj fd;k x;k iVokjh uD'kk esa Hkh iVokjh us mYys[k fd;k gS fd dksVokj 'khrynkl ,oa ghjk jke ds le{k uD'kk ekSdk rS;kj fd;k- mUgksaus crk;s fd ge yksx ekSdk esa ?kj esa xkatk ugha ns[ks g-Sa ,lMhvksih jhMj vkj{kd v'kksd dqekj us vius izfrijh{k.k esa crk;k gS fd izn'kZ [email protected] eq[kchj lwpuk izfrosnu ,oa izn'kZ [email protected] laiw.kZ dk;Zokgh dh lwpuk mls fnukad [email protected]@07 ds 16&00 cts feyk] tcfd izn'kZ [email protected] dk izfrosnu fnukad [email protected]@07 ds 16&30 cts rS;kj dk mYys[k izn'kZ [email protected] esa gSa- laiw.kZ dk;Zokgh tc fd;k gh ugha x;k Fkk rks ml nLrkost izn'kZ [email protected] dks izn'kZ [email protected] ds lkFk dSls Hkst fn;k x;k- mijksDr reke dkj.kksa ls mi fujh{kd eerk vyh ds fo:) Fkkuk ykyiqj] ftyk fcykliqj ds vijk/k dzekad [email protected] /kkjk 20&ch ,u-Mh-ih-,l- ,DV ds izdj.k] tks bl U;k;ky; esa fo'ks"k nkf.Md izdj.k dzekad [email protected] ntZ gS] esa >wBh lk{; x<+us ,oa >wBh lk{; nsus ckcr /kkjk 193 Hkk0na0la0 ds rgr n.Muh; vijk, ik, tkus ls dk;Zokgh djus gsrq fu.kZ; dh izfrfyfi eq[; U;kf;d n.Mkf/kdkjh] fcykliqj dks izsf"kr fd;k tkrk gS- lkFk gh lkFk foHkkxh; tkap gsrq fu.kZ; dh izfrfyfi iqfyl foHkkx ds ofj"B vf/kdkjh iqfyl

egkfuns'kd] funsZ'kd&vfHk;kstu foHkkx jk;iqj ,oa iqfyl egkfujh{kd] iqfyl v/kh{kd ,oa ftyk n.Mkf/kdkjh] fcykliqj dks Hkh izsf"kr fd;k tkos-

6. A careful perusal of the aforesaid paragraph would

show that learned Special Judge has made two

directions, firstly, the petitioner is guilty for

offence under Section 193 of the IPC and accordingly,

directed the Chief Judicial Magistrate, Bilaspur to

proceed in accordance with law and secondly,

disciplinary proceeding also be initiated against him

by sending a copy to the Superintendent of Police and

District Magistrate, Bilaspur.

7. The Supreme Court in the matter of State (NCT of

Delhi) v. Pankaj Chaudhary and others1 has clearly

held that in case of defective/illegal investigation

disparaging remarks/direction to initiate prosecution

should not be passed against the police officials

without affording them opportunity of hearing. It was

held as under:­

"42. While passing disparaging remarks against the police officials and directing prosecution against them, in our considered view, the High Court has failed to bear in mind the well settled principles of law that should govern the courts before making disparaging remarks. Any disparaging remarks and direction to initiate departmental action/prosecution against the persons whose conduct comes into consideration before the court would have serious impact in their official career.

1 (2019) 11 SCC 575

45. Since the High Court has passed strictures against the police officials who were involved in the investigation in FIR No.559 of 1997 without affording an opportunity of hearing to them, the disparaging remarks are liable to be set aside."

8. Reverting to the facts of the present case in light of

above­stated judgment of the Supreme Court in Pankaj

Chaudhary (supra), it is quite vivid that though in

the instant case show­cause notice was issued to the

petitioner for illegal / faulty investigation by

learned Special Judge on 22.1.2008, to which the

petitioner replied also and that was taken note of by

learned Special Judge and it has been recorded that it

will be decided at the time of final hearing, but

ultimately the judgment was delivered on 27.3.2008,

but the petitioner was not afforded an opportunity of

hearing while passing the judgment as it was just

contrary to the earlier order passed by learned

Special Judge. Since reply to show­cause notice has

been filed, learned Special Judge could have heard the

petitioner and thereafter order, if any, could have

been passed.

9. Likewise, direction by learned Special Judge to the

Chief Judicial Magistrate, Bilaspur to initiate

proceeding against the petitioner for offence under

Section 193 of the IPC is equally bad in law. Learned

Special Judge has clearly recorded a finding that the

petitioner has committed an offence under Section 193

of the IPC and for commission of offence under Section

193 of the IPC, the procedure prescribed to be

followed is provided under Section 195(1)(b)(i) of the

CrPC and complaint has to be filed before the

competent Court in accordance with law. That procedure

has also not been followed. Likewise, direction of

learned Special Judge to proceed departmentally

against the petitioner is also contrary to well

settled principle of law laid down by the Supreme

Court in Pankaj Chaudhary (supra).

      10.      Accordingly,                 the           impugned              adverse

        remark/direction            made    by     learned      Special     Judge         in

para­14 of its judgment dated 27.3.2008 to prosecute

the petitioner for offence under Section 193 of the

IPC and to proceed departmentally against him are

hereby set aside and consequential proceedings, if

any, are also quashed.

11. The writ petition is allowed to the extent

indicated hereinabove. No cost(s).

Sd/­

(Sanjay K.Agrawal) Judge B/­