Hoor Begum vs State (Nct Of Delhi) & Anr.
2011 Latest Caselaw 3066 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl. M. C. No. 4497/2003

                                     Date of Decision :04.07.2011

HOOR BEGUM                                     ...... Petitioner
                         Through:   Mr. R.N. Mittal, Sr. Adv. with
                                    Ms. Kamna Vohra, Adv.

                              Versus

STATE (NCT OF DELHI) & ANR.          ...... Respondents

Through: Mr. Pawan Bahl, APP Mr. Madhav Khurana, Adv. R-

CORAM:

HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in the Digest ? YES

V.K. SHALI, J:

1. This is a petition filed under Section 482 Cr.P.C. by the

petitioner, Hoor Begum against the order dated 28.04.2003

passed by the learned Metropolitan Magistrate refusing to

take cognizance of an offence under Section 302 IPC on the

basis of a cancellation report filed by the respondent to

which the protest petition was filed by the petitioner.

2. Briefly stated, the facts of the case leading to the filing of

the present petition are that Shabab Khan aged around 20

years, the son of the present petitioner was working as a

driver of Crane Lift Machine with Shivam Fork Lift

Services, Paschim Vihar, New Delhi. A complaint was

lodged by the petitioner on 27.03.1999 with the SHO,

Police Station Nand Nagari alleging that on 28.12.1998 her

son was found dead in a pond in the premises of M/s APS

Enterprises, Mandawali where he was working. On

receiving this information, petitioner along with her

husband and the police officials reached to the spot and

found the dead body of her son. It was alleged by her that

her son had been murdered and had not died an accidental

death due to drowning. Since the police had conducted the

inquest and not registered a case under Section 302 IPC,

the present petitioner was constrained to file a writ petition

before this Court bearing W.P.(Crl.) No.1101/1999. The

said writ petition was disposed of by Division Bench of this

Court directing SHO Nand Nagari to register an FIR and

investigate the matter. Accordingly, an FIR No.731/1999

under Section 302 IPC was registered at P.S. Nand Nagri.

The police conducted the investigation and recorded the

statements of the witnesses and filed a report under

Section 173 Cr.P.C. for cancellation of the case stating that

the death of the deceased had taken place on account of an

accident by drowning. The complainant, namely, the

present petitioner was issued notice about the said

cancellation report, whereupon she filed a Protest Petition

and took the plea that Daulat Ram and Raju came to her

house at Dabar Faridabad, Haryana and called the

deceased to accompany them to factory, where he was

killed and thereafter his body was thrown into the deep

pond. It was alleged that in the month of December, it was

very unlikely that the deceased would go for a bath in the

pond when the water is cold and, therefore, this was a case

of homicide and not accidental death.

3. The postmortem report of the deceased indicated that there

were mild abrasions on the head and the forehead. These

injuries in my opinion are not of such a significance, so as

to arouse suspicion about foul play as these injuries can be

sustained on the body, when the same is being fished out

from the water. The death of the deceased was attributed

to asphyxia due to drowning. Similarly, the CFSL report of

the viscera of the contents marked as exhibits 1,2,3 & 4

gave negative test with regard to any common poison and

thus, it completely ruled out foul play on the part of any

person including the employer or the helper.

4. The petitioner feeling aggrieved has preferred the present

petition for setting aside the order of the learned M.M.

accepting the cancellation report of the police. She has

taken a plea that re-investigation or further investigation in

the case be done, as it is a case of homicide.

5. I have heard Mr.R.N. Mittal, learned senior counsel for the

petitioner as well as the learned APP. I have also gone

through the records including the status report filed by the

learned APP.

6. Mr.Mittal, learned senior counsel contended that the death

of the deceased is shrouded in mystery and the local police

has not done a fair investigation into the matter so as to go

into the root of the matter to find out the reasons for the

death of the deceased. It was contended by him that there

were number of factors which aroused suspicion to show

that the death of the deceased was unnatural and

homicidal rather than accidental, as alleged by the

prosecution. In this regard, he has referred to the

complaint purported to have been made by the mother of

the deceased to the local police that Daulat Ram and Raj

Mittal (Raju) had come to her house for the purpose of

taking the deceased to office.

7. It is contended by Mr.Mittal, learned senior counsel for the

petitioner that it is very unlikely that a person would go

and have a bath in the pond in the winters knowing fully

well that the water would be extremely cold. It was further

contended that both the postmortem report and the CFSL

report has ruled out the possibility of presence of any

poison in the viscera and has opined that the death of the

deceased was on account of asphyxia due to drowning but

it has failed to

explain as to how the deceased had suffered the lacerated

and contused injuries both on his forehead and the head

which clearly shows that it could not have been an

accident. In the light of these facts, it has been contended

by the learned senior counsel that the matter needs to be

re-investigated or at least further investigated so as to

reach to the bottom of the matter. It has been contended

by the learned senior counsel that the High Court in

exercise of its powers under Section 482 Cr.P.C. can give

such a direction to the local police or transfer the

investigation to any other investigating agency in order to

conduct fair investigation of the matter. In this regard, the

learned counsel has placed reliance on the following two

judgments of the Apex Court:

i. Popular Muthiah Vs. State (2006) 7 SCC 296 ii. Kishan Lal Vs. Dharmendra Bafna & Anr. (2009) 7 SCC

8. As against this, the learned APP has contended that the

filing of the present petition by the petitioner is a gross

abuse of the processes of law on account of the fact that

the matter has been thoroughly investigated and nothing

amiss has been found in the death of the deceased which is

an accidental death and this fact also stands corroborated

by the postmortem report and the CFSL report. Therefore,

the matter need not be re-investigated as is sought to be

urged by the learned senior counsel for the petitioner. It

was conceded by the learned APP that the matter can be

further investigated by the police on its own or on the

directions of this Court but for the purpose of further

investigation, the present petitioner or any of his relatives

must be in a position to give some fresh inputs on the

basis of which the matter can be further investigated so as

to allay the fears of the petitioner. It has been contended

by the learned APP that the contention of the learned

senior counsel that the present protest petition ought to

have been treated as a complaint under Section 200 of the

Cr.P.C. and the matter ought to have been investigated or

inquired into by the learned Magistrate, does not have any

merit as the learned MM has passed a speaking and

reasoned order which does not call for any variation of the

order. It is stated that no prayer was made before the

learned MM that the protest petition be treated as a

complaint and after inviting orders, it is not open to the

petitioner to assail the same.

9. I have carefully considered the submissions of the learned

senior counsel and the learned APP and gone through the

record.

10. Before dealing with the grievance of the present petitioner

as to whether this is a fit case where there should be

further investigation or not, it may be pertinent here to

mention that there is no dispute about the fact that the

police suo motto in exercise of its powers under Section

173(8) Cr.P.C can 'further' investigate into the matter or

such a power can be exercised by the investigating agency

on the directions of the High Court given in exercise of its

powers either under Article 226 of the Constitution of India

or under Section 482 Cr.P.C. But one thing is to be borne

in mind that the word used under Section 173(8) Cr.P.C. is

'further investigation' and not 're-investigation'. While as

re-investigation would mean revisiting the evidence which

has already been collected by the investigating agency

which is not permissible within the domain of Section

173(8) Cr.P.C. but further investigation is possible which

would mean, to investigate the matter further from the

point from where it has been left in the previous

investigation. It is in this light that the statement of the

learned senior counsel for the petitioner is being examined.

It may be worthwhile here to refer to the observations

which have been made by the Apex Court in the two

judgments referred herein above.

11. In case titled Popular Muthiah Vs. State (2006) 7 SCC 296,

it has been observed in para no.21 as under:-

"21) The Code of Criminal Procedure is an exhaustive code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence

of the High Court as would be evidence from the following:

(i) The Court has the power to direct investigation in cognizable cases under Section 156(3) read with Section 190 of the Code of Criminal Procedure.

(ii) A Magistrate can postpone the issue of process and inquire into the case himself under Section 202(1) of the Code of Criminal Procedure.

(iii) When a charge -sheet is filed, the Court can refuse to accept the same and proceed to take cognizance of the offence on the basis of the materials on record. The court can direct further investigation into the matter.

(iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms of Chapter XV of the code of Criminal Procedure.

(v) Once the case is committed, the Sessions Judge may refer the matter to the High Court.

(vi) In the event, without taking any further evidence, it is found that while passing the order of commitment, the Magistrate has committed an error in not referring the case of an accused or left out an accused after evidence is adduced, the Court may proceed against a person who was not an accused provided it appears from the evidence that he should be tried with the accused.

(vii) The Revisional Court during pendency of the trial may exercise its revisional jurisdiction under Section 397 in which case, it may direct further inquiry in terms of Section 398 of the Code of Criminal Procedure.

(viii) The revisional powers of the High Court and the Sessions Court are pointed out in the Code separately from a perusal whereof it would appear that the High Court exercises larger power.

(ix) In the event of any conviction by a Court of Sessions, an appeal thereagainst would lie to the High Court. The appellate court exercises the power laid down under Section 386 of the Code of

Criminal Procedure in which event it may also take further evidence or direct it to be taken in terms of Section 391 thereof.

(x) The High Court has inherent power under Section 482 of the Code of Criminal Procedure to correct errors of the Courts below and pass such orders as may be necessary to do justice to the parties and/or to prevent the abuse of process of court."

12. Similarly, in Kishan Lal Vs. Dharmendra Bafna & Anr.

(2009) 7 SCC 685, it has been observed in paragraphs 11,

12 and 15 as under:-

"11) It is now a well-settled principle of law that when a final form is filed by any investigating officer in exercise of his power under sub-section (2) of Section 173 of the Code, the first informant has to be given notice. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency. It is also permissible for a learned Magistrate to direct further investigation. The investigating officer when an FIR is lodged in respect of a cognizable offence, upon completion of the investigation would file a police report.

12) The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any Court is permissible. In Naresh Kavarchand Khatri V. State of Gujarat, this Court held : ((2008) 8 SCC 300)

"6. The power of the Court to interfere with an investigation is limited. The police authorities, in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal Procedure has conferred power on the statutory

authorities to direct transfer of an investigation from one police station to another in the event it is found that they do not have any jurisdiction in the matter. The court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an investigating officer who did not have any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction."

15) An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence. Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel v. State of Gujarat in the following terms (SCC pp. 336-37, paras 12-13)

"12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code.

Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.

13. It is, however, beyond any cavil that „further investigation‟ and „reinvestigation‟ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a „State‟ to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior

court would ordinarily issue such a direction. Pasayant, J. in Ramachandran v. R.Udhayakumar, opined as under : (SCC p.415 para 7)

7. At this juncture, it would be necessary to take note of Section 173 of the Code. From a plan reading of the above section it is evident that even after completion of investigation under sub- section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation."

We have referred to the aforementioned decision only because Mr.Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the investigating officer inadvertently."

14. I have gone through the aforesaid two judgments. I have

also carefully considered the submissions made by the

learned senior counsel for the petitioner.

15. So far as the propositions of law laid down by the Apex

Court in the two judgments which have been cited by the

learned senior counsel for the petitioner is concerned,

there is no dispute.

16. Popular Muthiah's case has been essentially relied upon by

the learned counsel to urge the contention that the

objection which was filed by the petitioner ought to have

been treated as a complaint and the Magistrate ought to

have held an inquiry into the matter and thereafter take

cognizance.

17. So far as the judgment in Kishan Lal's case is concerned,

the contention of the learned senior counsel for the

petitioner was that in exercise of powers under Section 173

(8), the learned Magistrate could have also directed further

investigation to be conducted by the investigating agency in

order to find out the real reasons for homicide of the

deceased.

18. The order passed by the learned Magistrate shows that not

even a single factor was pointed out by the petitioner before

him which has not been considered by the IO or which

warranted holding of an inquiry by him which would have

persuaded him to take the cognizance of the offence.

19. It may be pertinent here to refer to the inquest report,

which was admittedly conducted in the presence of the

father of the deceased who had signed such proceedings

where he had not suspected any foul play in the death of

his deceased son. It is only after a considerable lapse of

time that the petitioner is purported to have made the

complaint making allegations that she is suspecting a foul

play in the death of her son. In the complaint also, there

were charges and counter charges both from the petitioner

and the respondent no.2 and 3 with regard to the insertion

of certain lines in the complaint which were stated to be

not in existence in the complaint which was lodged with

the police.

20. I do not think it necessary to go into that aspect of the

matter as to whether anything was interpolated in the

complaint by the petitioner or not as in my considered

opinion, nothing turns on the same. The important fact

which is ignored by the learned senior counsel for the

petitioner is the finding of the post mortem report. It

categorically shows that the death of the deceased was on

account of asphyxia which occurred because of drowning.

The Viscera report does not show that any poisonous

substance have been administered to the deceased as all

the contents of the exhibit marked as marks 1 to 4 gave

negative results.

21. In the light of these facts, the only aspect which needs to

be considered is the injuries on the body of the deceased

which are mild abrasions found on the head and the

forehead. These injuries are of such a minor nature as is

apparent in the post mortem report that they could have

been very well caused while taking out the dead body from

the pond. Therefore, much importance could not be

attached to this.

22. The other aspect of the matter which was urged before this

Court by the learned senior counsel for the petitioner was

that the incident is purported to have taken place in the

month of December when the water in the pond was

expected to be fairly cold during the wee hours of the

morning. There could hardly be any plausible reason for a

normal person to go and have a dip in the pond.

23. I do not consider this as an important fact to attribute the

reason to investigate into the matter further because a

man's mind is the most unpredictable and it is possible

that the deceased despite knowing fully well that it was

cold, wanted to have a dip in the pond. In any case, not

even a single factor has been mentioned by the petitioner

before the learned MM which would have aroused any

reasonable suspicion that there was any foul play in the

death of the deceased.

24. I feel that the petitioner being the mother and on account

of the sad and untimely loss of her son, is distressed and

therefore, wants to fix the responsibility on to somebody for

this. She has chosen the respondent nos.2 and 3 as the

convenient target.

25. I do not find any infirmity in the order of the learned

Magistrate warranting any interference by this Court.

Accordingly, the petition filed by the petitioner is totally

misconceived and the same is dismissed.

V.K. SHALI, J.

JULY 04, 2011 Anb/RN