Madhya Pradesh High Court

Victim (X) (Minor) Through Her ... vs The State Of Madhya Pradesh on 3 August, 2021

Author: Gurpal Singh Ahluwalia

     1  THE HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.7217/2021
Victim "X" (Minor) Through her Father Vs. the State of M.P. and
                           others

                 Through Video Conferencing
Gwalior, Dated:3/08/2021

         Shri Vivek Jain, Counsel for the applicant.

         Shri M.P.S.Raghuwanshi, Additional Advocate General for the

State.

         This application under Section 482 Cr.P.C. has been filed

seeking the following relief:-

               "a. To direct the police authorities to record
         proper statements under section 161 CrPC by
         complying the provisions of sections 24 and 26 of the
         POCSO Act,
               b.     To direct re-recording of statements u/s
         164 by complying the provisions of sections 25 and 26
         of the POCSO Act as the earlier statements were
         marked thumb impression by the petitioner under
         duress of the respondent No.4 and Sub-Inspector

Rachna Khatri, c. To direct the investigation to be handed over to any officer other than the respondent No.4 and Rachna Khatri, d. To direct the police to investigate about the role of respondent No.6 and also other persons who were collaborators of the crime of trafficking of the petitioner and her sale as bonded labourer, e. Any other directions that this Hon'ble Court may deem fit in the interest of justice."

2. It is submitted by the counsel for the applicant that when she

had gone to answer the call of nature, she was forcibly kidnapped by

respondents No.5 and 6. The police very reluctantly registered the

FIR after the father of the applicant ran from pillar to post. Initially,

the FIR was registered at Crime No.214/2019 under Section 363 of 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.7217/2021 Victim "X" (Minor) Through her Father Vs. the State of M.P. and others

IPC, however, after recovery of the applicant, the offence under

Section 376 of IPC r/w Section 5 and 6 of POCSO Act were also

added. It is submitted that although the police after completing the

investigation has filed the charge-sheet for offence under Section

363, 376 of IPC and under Section 5/6 of POCSO Act, but statements

of the applicant were not recorded as per the provision of Sections 24

and 26 of POCSO Act. However, the applicant has fairly conceded

that the police after completing the investigation has filed the charge-

sheet.

3. Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that the applicant has not

pointed out as to in what manner the provisions of Sections 24 to 26

of the POCSO, Act were not complied with. It is further submitted

that now the charge-sheet has been filed and the Court is in seisin of

the matter and even if there was some irregularity in the

investigation, then the same cannot be a ground for further

investigation.

4. Heard learned counsel for the parties.

5. The Supreme Court in the case of H.N. Rishbud Vs. State of

Delhi reported in AIR 1955 SC 96 has held as under:-

"9. The question then requires to be considered whether and to what extent the trial which follows such 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.7217/2021 Victim "X" (Minor) Through her Father Vs. the State of M.P. and others

investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or

(b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted:

"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.7217/2021 Victim "X" (Minor) Through her Father Vs. the State of M.P. and others

competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice."

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor AIR 1944 PC 73 (C) and Lumbhardar Zutshi v. King AIR 1950 PC 26 (D). These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."

However, it has also been held by the Supreme Court as

under:-

"10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.7217/2021 Victim "X" (Minor) Through her Father Vs. the State of M.P. and others

not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation.

6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.7217/2021 Victim "X" (Minor) Through her Father Vs. the State of M.P. and others

The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined."

6. Thus, where breach of any mandatory provision of law is

brought to the knowledge of the Court at a sufficiently early stage,

then the Court will have to take necessary steps to get the illegality

cured and defects rectified by ordering such further investigation as

the circumstances of an individual case may call for. However, the

said direction can be issued after considering the nature and extent of

violation and prejudice which is caused to the parties.

7. In the present case, admittedly the applicant has not filed any

application either under Section 190 or 193 of Cr.P.C. before the

Court of competent jurisdiction. When a specific provision is

provided under the Cr.P.C., then it is not appropriate for this Court to

take cognizance of some complaint made by the complainant in the

investigation. Accordingly, without considering the fact as to whether

there was any breach of provisions of Sections 24 to 26 of the 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.7217/2021 Victim "X" (Minor) Through her Father Vs. the State of M.P. and others

POCSO, Act and if so, then what was its effect on the investigation,

this Court is of the considered opinion that since the applicant can

file an application under Sections 190, 193 of Cr.P.C. before the

Court of competent jurisdiction, therefore, this Court is not inclined

to interfere in the matter. Accordingly, the applicant is granted liberty

to move an application under Sections 190, 193 of Cr.P.C. before the

Court of competent jurisdiction. If such an application is filed, then

the Trial Court shall consider as to whether there was any breach of

Sections 24 to 26 of the POCSO, Act or not. If the Court comes to a

conclusion that the provisions of Sections 24 to 26 of the POCSO,

Act were not followed, then the Court shall also consider as to

whether the applicant has suffered any prejudice or not. After