Delhi High Court
Si B.D.Sharma vs Jagmohan on 3 May, 2012
Author: Pratibha Rani
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION: May 03, 2012
+ CRL.REV.P. 725/2006
SI B.D.Sharma ..... Petitioner
Through:Mr.V.K.Malik, Advocate
versus
Jagmohan ..... Respondent
Through:Mr.Navin Sharma, APP for
the State.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J (ORAL)
1. This criminal revision petition has been preferred by SI B.D.Sharma,
impugning the directions given by learned ASJ to SHO P.S. New Ashok Nagar vide
order dated 16th September, 2006, to register a case against the petitioner and with
further directions to get the investigation conducted by an Officer not below the
rank of Assistant Commissioner of Police.
2. Succinctly stated the facts leading to registration of FIR No.161/2005 under
Section 302 IPC P.S. New Ashok Nagar, are that one Nazira @ Munni, after divorce
from her first husband married the accused Jagmohan and started living with him.
She also had a son, namely, Gulab from her previous husband. On 18th August,
2004, when she returned from her work, she found her husband Jagmohan present
Crl.Rev.P.No.725/2006 Page 1 of 5
at home but Gulab was lying unconscious. She took her son to LBS Hospital,
Khichiripur, Delhi, where he was declared brought dead.
3. The post mortem conducted on the body of Gulab by Dr.Vinay Kumar Singh
revealed that the child expired on account of haemorrhagic shock due to blunt force
impact to his abdomen. The reason for giving the direction to SHO to register a FIR
against SI B.D.Sharma is due to an inaction on the part of SI B.D.Sharma, despite
the post mortem report indicating the cause of death to be unnatural.
4. A perusal of the impugned judgment reveals that despite the occurrence
taking place on 18th August, 2004, there was no complaint by the mother of the
child. However, after a long gap on 12th April, 2005, she reported the matter to the
police, pointing out the accusing finger towards her husband Jagmohan for the
death of her son Gulab. The investigation was carried out and charge sheet was
filed.
5. After examining some material witnesses, the learned ASJ acquitted the
accused for the reason that the heel imprint noticed on the body of Gulab was of
smaller size. Even in the Court, Dr.Vinay Kumar Singh, who conducted the post
mortem, was asked to take the measurement of heel imprint of accused Jagmohan
and compare it with the imprint found on the body of Gulab. On getting the opinion
of Dr.Vinay Kumar Singh that heel imprint on the dead body was not that of the
accused, assault by the accused on Gulab was ruled out. While observing that
Munni, mother of the child victim had also been murdered, a vacuum had come in
the evidence, learned ASJ acquitted the accused but at the same time in para 11 of
the judgment issued the following direction:
Crl.Rev.P.No.725/2006 Page 2 of 5
"B.D.Sharma SI entered the witness box to project as to how callous he was,
when he handled the case. He admits that autopsy on dead body of Gulab was
got conducted. According to him, since parents of Gulab did not lodge any
complaint, no legal action was initiated. As detailed above, death of Gulab
occurred on account of homicidal or accidental act. In such situation, it was
bounded duty of B.D.Sharma SI to initiate a legal action, for a congnizable
offence was committed. B.D.Sharma SI opted not to obey commands of law.
He slept over the matter and went it slumbers. Valuable evidence was lost on
account of omission on the part of this officer. His act and conduct are not in
conformity with responsibility, which lies on his shoulders. Considering all
these facts, SHO PS New Ashok Nagar, Delhi is commanded to register a case
against B.D.Sharma SI, investigation of which would be taken up by an officer
not below the rank of Assistant Commissioner of Police, under intimation to
this Court."
6. The grievance of the petitioner is that no opportunity of being heard was
given to him before condemning him for inaction. Learned ASJ fell in grave error in
law by not complying the provisions contained in Chapter XXVI of Code of Criminal
Procedure, 1973 which defines the offences affecting the administration of justice.
The learned ASJ has no power to direct the police to register FIR against police
officials without complying the provisions of Section 344(1)(2)(4) of Cr.P.C. It is
submitted that SI B.D.Sharma was not the Investigating Officer of the case
No.161/2005 under Section 302 IPC, P.S. New Ashok Nagar. He only conducted the
inquest proceedings.
7. I have heard learned counsel for the petitioner and learned APP for the State.
Learned counsel for the petitioner has referred to the judgment of this Court in
Crl.Rev.P.No.12/2009, titled Ashok Kumar Vs. CBI, decided on 16th September, 2011.
In the above said judgment, Crl.Rev.P.No.10/2008 titled Manmohan Sharma Vs.
State was referred, wherein it was observed as under:
"Learned counsel for the petitioner further emphasized that in the present
case officers have not even been given an opportunity to explain their stand
before passing strictures and the Supreme Court in State of West Bengal and
Ors. Vs. Babu Chakraborty 2004 Crl.L.J. 4858 had observed the strictures
passed against the police officers are liable to be expunged including lodging
of a complaint against them even where in the discharge of the official duties
Crl.Rev.P.No.725/2006 Page 3 of 5
they faulted certain provisions until and unless an opportunity was afforded to
them to explain their conduct.
The result of the aforesaid is that the direction passed in paragraph 40
of the impunged judgment in the present case fall within the mischief referred
to in the aforesaid judgments whereby the learned Additional Sessions Judge
as straightway issued directions for registration of the FIR against the police
officers and proceedings against them without following the mandatory
provision of Section 340 Cr.P.C. The direction is, thus, liable to be set aside. I,
however, deem it appropriate that in view of the observations made foresaid
it would be open to the trial court to consider the matter afresh and take a
considered decision whether the matter needs to be referred to the CMM/MM
for inquiry under Section 340 Cr.P.C., as also on the aspect whether before
issuance of any directions an opportunity ought to be given to the petitioners
to explain their stand which may necessitate such an action. The petitions are,
accordingly, allowed."
It has been contended that the circumstances in which directions have been
issued to register FIR are no different, as directions have been issued to register the
FIR without giving an opportunity of being heard to the petitioner.
8. A perusal of the judgment dated 16th September, 2006, makes it ample clear
that the directions to register FIR against SI B.D.Sharma has been given without
affording him an opportunity of being heard despite the fact that he was not the
Investigating Officer in FIR No.161/2005 P.S. New Ashok Nagar registered against
Jagmohan. It is relevant to mention here that statement of Dr.Vinay Kumar Singh,
who conducted the post mortem, referred to in para 8 of the judgment, opined that
"cause of death was haemorrhagic shock on account of blunt force impact, caused
by right foot of some third person by jumping over the victim or on account of fall
from a height. Facts
testified by Dr.Vinay Kumar Singh make it clear that death of
Gulab was either homicidal or accidental."
9. The learned ASJ has observed that the facts testified by Dr.Vinay Kumar
Singh make the case of death of Gulab as either homicidal or accidental. It is clear
from the facts of the case that mother of the deceased did not make any complaint,
expressing suspicion on her husband behind the unnatural death of her son and
when the trial was going on she was no more there to depose as she had already
been murdered.
10. Thus the role of SI B.D.Sharma was limited to conduct inquest proceedings at
the time of post mortem. If the learned ASJ was of the view that SI B.D.Sharma
opted not to obey the command of law, at least, an opportunity of being heard was
required to be given before passing strictures and giving the directions to register a
FIR against him.
11. Accordingly the directions in the impugned judgment dated 16 th September,
2006, contained in para 11 are set aside. A copy of the order be sent to the learned
trial court with the directions that in case it chooses to proceed against the
petitioner, an opportunity of being heard would be afforded to the petitioner.
12. With the above observations, revision petition is disposed of.
PRATIBHA RANI, J
May 03, 2012
aka.
