Madhya Pradesh High Court
Harkanth vs State Of M.P. on 9 November, 2021
Author: Gurpal Singh Ahluwalia
1
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 233 of 2010
Jagdish
Vs.
State of M.P.
&
Cr.A. No. 239 of 2010
Harkanth
Vs.
State of M.P.
&
Cr.A. No.281 of 2010
Harnam Singh
Vs.
State of M.P.
------------------------------------------------------------------------------------
Shri Arvind Kumar Dwivedi with Shri Awadhesh Parashar, Counsel
for the Appellant (Cr.A. No.233 of 2010).
Shri A.K. Jain with Shri Awadhesh Parashar, Counsel for the
Appellants (Cr.A. No.239 of 2010 and Cr.A. No.281 of 2010).
Shri C.P. Singh, Counsel for the State.
Shri B.S. Gaur, Counsel for the Complainant
Date of Hearing : 28-10-2021
Date of Judgment : 09-11-2021
Approved for Reporting :
Judgment
09-November-2021
Per G.S. Ahluwalia J.
This Criminal Appeal under Section 374 of Cr.P.C. has been
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
filed against the judgment and sentence dated 11-3-2010 passed by
Special Judge (MPDVPK Act), Shivpuri, in Special Sessions Trial
No.47/2009 by which the appellants have been convicted and
sentenced for the following offences :
Name of appellant Conviction Sentence
Harnam Singh Under Section 364A Life Imprisonment
of I.P.C. read with and fine of Rs.1,000/-
Section 11/13 of in default 3 months
MPDVPK Act R.I.
Harkanth Under Section 364A Life Imprisonment
of I.P.C. read with and fine of Rs.1,000/-
Section 11/13 of in default 3 months
MPDVPK Act R.I.
Jagdish 412 of I.P.C. 7 years R.I. and fine
of Rs.1,000/- in
default 3 months R.I.
2. It is not out of place to mention here that in para 16-20 of the
judgment, the Trial Court has given a finding that Memorandum of
Appellant Harkanth, Ex. P.10 and P.13 are forged documents and
prepared at a later stage, therefore, has also directed to issue notice to
Charan Lal Uike (P.W.10) and Dilip Singh Yadav (P.W. 11) to show
cause as to why action be not taken against them. However, there is
nothing on record to show as to whether any decision in this regard
was ever taken in the matter or not?
3. Further, it appears that one more absconding accused namely
Salikram was arrested on 7-5-2011, i.e., subsequent to passing of
impugned judgment and sentence and by judgment and sentence
dated 30-5-2017 he has been convicted. However, it appears that he
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
has not filed any Criminal Appeal. Furthermore, the evidence led in
his trial cannot be read in the present case (M.T. Mydeen and
another Vs. The Assistant Commissioner, Customs Department,
Judgment dated 29-10-2021 passed in Cr.A. No. 1306 of 2021).
4. The necessary facts for disposal of the present appeal in short
are that on 24-2-2009, Govind Singh, Aafaq Ahmed Siddique, and
other villagers had gathered in Shiv Temple situated near Sindh
River. When Bhandara came to an end, then Govind, his son Vijay
Singh and Bablu started for going back to Shivpuri. Govind was on
one motorcycle, whereas Vijay Singh and Bablu were on another
motorcycle. They were waylaid by one miscreant who was armed
with gun and asked them to stop. Accordingly, all the three persons
stopped there. In the meanwhile, 3 more miscreants, who were hiding
behind the bushes, also came there and took them about 50 meters
inside the forest area along with their motorcycles. Thereafter, all the
three persons were taken inside the forest area, after leaving their
motorcycles at that place. When, the three abductees were being
taken inside the forest area, at that time, Govind Singh and Vijay
Singh saw that one person had come out of the bushes, who was
identified by them as Harnam Singh. Thereafter, all the three
abductees were compelled to move from one place to another.
Thereafter, Vijay Singh was instructed to talk to his family members
from his mobile. Accordingly, an information of abduction was given
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
to Afaq Ahmed and accordingly, the employees of forest department
gathered. Thereafter, they went to the house of Govind Singh and
later on, F.I.R. was lodged by Afaq Ahmed Siddique which was
registered as Crime No.48/2009.
5. The police prepared spot map on the instructions of Afaq
Ahmed Siddique. During search, motorcycles were recovered, which
were got identified. In the meanwhile, Govind Singh was released by
miscreants with an instruction that he should wait for further
instructions and phone. The recovery memo of Govind Singh was
prepared on 26-2-2009. Thereafter, an information was received by
Govind Singh, that an amount of Rs.10,00,000/- be paid for release
of Vijay Singh and Bablu and accordingly, Govind Singh, paid said
amount and Vijay Singh and Bablu were also released and their
recovery memo dated 6-3-2009 was prepared. The appellant
Harkanth was arrested on 25-2-2009, who gave a confessional
statement, that an amount of Rs.25,000/- is kept in his house. On 5-4-
2009, the father of Harkanth, produced the amount of Rs.25,000/-
which was seized. On 13-3-2009, Harnam Singh was arrested. On 24-
4-2009, Jagdish was arrested and an amount of Rs.1,90,000/- was
recovered on his disclosure. The statements of the witnesses were
recorded. The police after completing the investigation, filed the
charge sheet for offence under Sections 364A of I.P.C. and under
Section 11/13 of MPDVPK Act. Since, three more persons, namely
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Rajendra @ Gutta, Salikram and Pappu were absconding therefore,
charge sheet under Section 299 of Cr.P.C. was filed against them.
6. The Trial Court by order dated 24-6-2009, framed charges
under Sections 364-A of I.P.C. read with Section 11/13 of
M.P.D.V.P.K. Act against the appellants. Thereafter, final arguments
were heard on 5-3-2010 and the case was fixed for delivery of
judgment on 11-3-2010. On 11-3-2010 itself, the Trial Court
amended the charges, and also framed charge under Section 412 of
I.P.C. against Jagdish. On the very same day, the judgment was also
pronounced.
7. The appellants abjured their guilt and pleaded not guilty.
8. The prosecution examined Govind Singh (P.W.1), Vijay Singh
Kushwaha (P.W.2), Bablu Yadav (P.W.3), Aafaq Ahmed Siddique
(P.W.4), Saraswati Prasad Kulshrestha (P.W. 5), Amol Singh (P.W.6),
Harveer Singh Chauhan (P.W.7), Heera Singh (P.W.8), Balkishan
Prajapati (P.W.9), Charanlal Uikey (P.W.10), Dilip Singh Yadav
(P.W.11), and Vinay Kumar (P.W. 12).
9. The appellants did not examine any witness in their defence.
10. By the impugned judgment and sentence, the Trial Court
convicted and sentenced the appellants for the offences mentioned
above.
11. Challenging the judgment and sentence, it is submitted by the
Counsel for the appellants that the prosecution has failed to prove the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
guilt of the appellants beyond reasonable doubt. Even the Trial Court
itself has found that some part of the investigation was the outcome
of forged and fake investigation. The prosecution has failed to prove
that any ransom was demanded. The prosecution has also failed to
prove that any ransom was paid or even the abductees were ever
abducted.
12. Per contra, the Counsel for the State has supported the
prosecution story as well as the findings recorded by the Trial Court.
13. Govind Singh (P.W.1) has stated that on 24-2-2009, he was
returning back along with his son Vijay Singh (P.W.2) and Bablu
(P.W.3). On their way, they were waylaid by one miscreant who was
having gun and asked them to stop, otherwise, they will be killed.
Accordingly, all of them stopped. Immediately thereafter, 2-3
miscreants came out of the bushes and caught hold of all the three
abductees. They took them about 50 meters inside the forest area
along with their motorcycles and after leaving the motorcycles, they
took the three abductees inside the forest area. When they were being
taken inside the forest area, then one more miscreant who was hiding
himself behind the bushes, also came out. The said miscreant had
worked with him as a Chowkidar. All the three abductees were
chained. They compelled the abductees to walk till 1:00 A.M. in the
night. Thereafter they took some rest and reached a Govt. mine
situated within National Park. The miscreants instructed to inform
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
their family members, accordingly his son Bablu informed from his
mobile. Thereafter, they spent the entire day and night. On the next
day, they took rest and walked for the whole night. On 26 th, the
miscreants brought the abductees to the road and released this
witness, with an instruction that he should wait for their instructions.
Accordingly, this witness came back to his house. Two days
thereafter, he received an information, that he has to pay
Rs.10,00,000/- and accordingly on 5 th, an amount of Rs.10,00,000/-
was paid and he got his son as well as his servant Bablu, released.
The police had prepared his recovery memo, Ex. P.1 and was handed
over to the custody of his father. He further stated that he had seen
half face of the appellant Harkanth, whereas Harnam was his
Chowkidar.
14. In cross-examination, this witness has stated that Harkanth was
not known to him. He further admitted that he could not identify
Harkanth. He further admitted that he had not disclosed the name of
any miscreant in his police statement. He further stated that he had
informed the police that he has paid Rs.10 Lacs, but could not
explain as to why the said fact is not mentioned in his police
statement. He further stated that he had collected the money from his
relatives and had not withdrawn the money from bank. He further
admitted that he had not disclosed the names of his relatives to the
police. He denied the suggestion that Harnam was Chowkidar for the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
last 12 years. He further denied that for the last 2 years, he had not
paid the salary to Harnam and since, he was demanding his salary,
therefore, a false case has been concocted. He was re-examined. He
further stated that he had given the money to Rajendra Gatta
including 14 currency notes of Rs.1000/- and 10 currency notes of
Rs.100/-. He further claimed that the above mentioned currency notes
which have been produced in the Court, Article A-1 to A-24, were
signed by him. He had given Rs.10 lacs, out of which he had signed
some of the currency notes. In further cross-examination, he stated
that the police had not shown him the currency notes which were
signed by him. He denied that some currency notes have been signed
by Dot pen and some by Gel Pen. He denied that he had signed the
currency notes in the police station. He was further cross-examined
and he stated that he had not stated to the police that he had signed
the first and last currency note of each bundle, and could not explain
as to why such fact was mentioned in his police statement.
15. Vijay Singh Kushwaha (P.W.2) is the son of Govind Singh
(P.W.1). Apart from stating the same allegations, he further stated that
he was released after an amount of Rs.10 lacs was paid by his father.
He had heard the conversation of the miscreants, that out of the total
ransom amount, some amount shall be paid to Harnam Singh and
Arjun as they have assisted in abducting the abductees. He further
stated that he was released after the ransom amount was received by
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
the miscreants. He further stated that Rajendra Gurjar, Saligram
Gurjar, Pappu Gurjar and Harkanth were amongst the miscreants.
Harkanth and Harnam were identified by this witness in Dock. He
further stated that his recovery memo Ex. P.2 was prepared by the
police.
16. In cross-examination, this witness has stated that they were
never blindfolded. Thereafter, he clarified that at the time of crossing
the road, they used to blindfold him. He further stated that after the
ransom amount was paid, the miscreants had got the amount counted
from this witness. However, he could not explain as to why the fact
of payment of ransom amount is not mentioned in his police
statement.
17. He further admitted that Harnam was the employee of forest
department, and was working in the same office, in which Govind
Singh (P.W. 1) was working. He admitted that Harnam had visited
his house on several occasions, but claimed that he had not done any
household work of this witness. He also claimed that he had informed
the police that he had overheard the conversation that some amount
shall be paid to Harnam, but could not explain as to why this fact is
not mentioned in his police statement. He denied that he is making
false allegations against Harnam, so that his father is not required to
pay salary to Harnam.
18. Bablu (P.W.3) is the third abductee. He has also stated in a
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
similar manner in which Govind Singh (P.W.1) and Vijay Singh
(P.W.2) have deposed. However, he clearly stated that on 5 th, the
miscreants were sleeping and taking advantage of said fact, he and
Vijay Singh (P.W.2) succeeded in running away. He stated that the
name of one miscreant was Rajendra Gatta, another was Saligram,
third was Pappu and fourth was Pandit, whose full name was
Harkanth.
19. In cross-examination, this witness could not identify the
appellants in the Dock. Therefore, he was declared hostile. In cross-
examination by the public prosecutor, he stated that today he do not
remember as to whether Harkanth was also involved or not. Thus,
nothing could be elicited, which may establish the identity of the
appellants. In cross-examination by the defence, this witness
admitted that the police had disclosed the name of Harkanth.
20. Afaq Ahmed Siddique (P.W.4) has stated that he had attended
the Bhandara on the occasion of Shivratri. At about 5-5:30 P.M.,
Govind Singh, Vijay Singh and Bablu Yadav went back to Shivpuri
on their motorcycles. 15-20 minutes thereafter, this witness also
returned back. In the morning, he received a telephonic call from the
daughter of Govind Singh, who informed, that Govind Singh and
Vijay Singh have been abducted by Rajendra Gatta and also
informed, that this information has been received by Saraswati
Shrivastava. Accordingly, he and other employees of Forest
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Department went to Gora, but could not get any information.
Accordingly, F.I.R., Ex. P.3 was lodged. The spot map, Ex. P.4 was
prepared.
21. This witness was cross-examined and in cross-examination,
this witness admitted that this witness and Govind Singh are the
employees of same department. In the morning he had received a
telephonic call, but could not disclose the telephone number. After
receiving the telephone, he immediately went to the house of Govind
Singh. He reached there at about 7-8 A.M. and stayed there for 10
minutes. Thereafter, they went to police station to lodge the F.I.R.
This witness could not explain as to why the fact that the daughter of
Govind Singh had informed by telephone is not mentioned in the
F.I.R., Ex. P.3. He further stated that he had informed the police that
daughter of Govind Singh had informed that Rajendra Gatta has
abducted, but could not clarify as to why that fact is not mentioned.
He further claimed that at the time of lodging of F.I.R., Ex. P.3, he
was aware of the fact that who has abducted the abductees, but
admitted that he had mentioned in the F.I.R., that some unknown
persons have taken away.
22. Saraswati Prasad Kulshrestha (P.W.5) has stated that at about
7.24 A.M., he received a phone on his mobile from Mobile
No.9827017062. Vijay Singh Kushwaha had informed that they have
been abducted by Rajendra Gurjar, Saligram Gurjar, Pappu Gurjar,
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
and one more miscreant. Vijay Singh had also requested him to
inform his family members. Thereafter, he informed the father of
Govind Singh about abduction. In cross-examination, this witness
has stated that he had not given the record of mobile to the police,
from which he had received the phone.
23. Amol Singh (P.W. 6) has stated that the police had arrested
Jagdish vide arrest memo Ex. P.5. He had made a disclosure
statement, Ex. P.6 and accordingly, an amount of Rs.1,90,000/- was
seized from the possession of Jagdish, vide seizure memo Ex. P.7
which he had kept in a yellow plastic,.
24. This witness was cross-examined. In cross-examination, this
witness has stated that money was counted at the time of seizure and
some currency notes were of denomination of Rs.1000, 500, 100 and
50. He could not recollect as to whether the money was sealed or not.
The money was taken out from a place which is situated in front of
the house of Jagdish. He further admitted that Govind Singh has also
come to the Court and is standing outside the Court room, but denied
that he has come along with Govind Singh. He further admitted that
he is on visiting terms with Govind Singh.
25. It is not out of place to mention here that Govind Singh (P.W.1)
was examined on 13-7-2009 and this witness was examined on 20-8-
2009.
26. Harveer Singh Chauhan (P.W. 7) has stated that he is neighbor
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
of Govind Singh. In the morning he came to know that he has been
abducted and accordingly, all the employees of the department were
called and they went to Gora Nursery, and enquired from the
Chowkidars. There he came to know that Govind Singh, Vijay Singh
and Bablu have been abducted. Thereafter, the police came on the
spot. Two motorcycles were found in the forest area. The police took
away the motorcycles. He had identified the motorcycles, and the
identification memo is Ex. P.8.
27. Heera Singh (P.W.8) has stated that Harnam Singh was arrested
vide arrest memo Ex. P.9. However, he denied that any interrogation
was done by the police, but admitted that memorandum, Ex. P.10
bears his signature. Accordingly, this witness was declared hostile
and in cross-examination by public prosecutor, this witness admitted
that on 3-4-2009, Harkanth had made a confessional statement, Ex.
P.10.
28. In cross examination, this witness denied that his signatures
were obtained and no interrogation was done.
29. Balkishan Prajapati (P.W.9) has stated that on 5-4-2009,
Bhagwan Singh Gurjar, had produced Rs.25,000/- which were seized
vide seizure memo Ex. P.11.
30. Charanlal Uike (P.W.10) has stated that on 1-4-2009, he had
arrested Harkanth vide arrest memo Ex. P.12. On 4-4-2009, Harkanth
had given a confessional statement, that he has kept Rs.25,000/- in
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
his house and accordingly, his memorandum, Ex. P.13 was recorded.
31. In cross-examination, this witness denied that he had prepared
forged memorandum, Ex. P.13.
32. Dilip Singh Yadav (P.W. 11) has stated that on the report of
Aafaq Ahmed Siddique (P.W.4), F.I.R., Ex. P.3 was recorded.
Thereafter, he prepared the spot map, Ex. P.4. On 6-3-2009, Vijay
Singh son of Govind Singh and Bablu returned back and accordingly,
their recovery memo Ex. P. 2 was prepared. Earlier, he had prepared
recovery memo of Govind Singh, Ex. P.1 on 26-2-2009. The
motorcycles were got identified from Aafaq Ahmed vide
identification memo Ex. P.9. On 13-3-2009, Harnam Singh was
arrested vide arrest memo Ex. P.9. On 25-2-2009, Harkanth was
arrested and arrest memo was prepared. On 24-4-2009, Jagdish was
arrested vide arrest memo Ex. P.5. On 24-4-2009, Jagdish had made
a confessional statement, Ex. P.6 and accordingly, an amount of
Rs.1,90,000/- was seized from the Kothari (Room), vide seizure
memo Ex. P.7. On 5-4-2009, Bhagwan Singh, the father of Harkanth
produced Rs.25,000/- which were seized vide seizure memo Ex. P.11.
33. A note has been appended by the Trial Court, that this witness
has stated that the words that "6 currency notes bears the signatures
of Govind Singh" are not in his handwriting. The defence Counsel
had also taken a plea that when the charge sheet was produced, the
above mentioned lines were not mentioned. It was also found that the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
case diary also contains the photo copy of the seizure memo, Ex. P.11
and even in that document, the above mentioned lines are missing.
The words "6 currency notes bears the signatures of Govind Singh"
were marked as C to C, and it was observed, that decision shall be
taken at the time of delivery of judgment.
34. He further stated that on 3-4-2009, the confessional statement
of Harkanth, Ex. P.10 was also recorded, in which he made disclosure
statement. On 26-2-2009, Govind Singh was handed over to the
custody of his father, which is Ex. P.14. Similarly, Vijay Singh and
Bablu were handed over to the custody of Ramdatt by Supurdagi
Panchnama Ex. P.15. On 25-2-2009, the statements of Aafaq Ahmed
Siddique, Arun Goswami, Harveer Singh were recorded and the
statements of Ramesh Singh, Arun Goswami, were recorded on 27-2-
2009. The statement of Saraswati was recorded on 1-3-2009 and
statements of Govind Singh, Vijay Kumar and Bablu were recorded
on 6-3-2009. Harnam Singh was arrested on 13-3-2009 vide arrest
memo Ex. P.9 The counter copy of F.I.R. was sent to Magistrate on
25-2-2009 which was received by the Court on 26-2-2009. The
Inward-Outward register is Ex. P.17 and the acknowledgment is Ex.
P.18.
35. In cross-examination, this witness stated that he had recorded
the confessional statement of Harkanth on 3-4-2009 and application
for remand was rejected on 4-4-2009 and denied that no confessional
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
statement was recorded till 4-4-2009. He further admitted that the
confessional statement of Harkanth bears the signatures of police
personnel only as witnesses. He denied that he had forcibly got
Rs.25,000/- deposited from the father of Harkanth. He denied that
Bhagwan Singh was kept in police station for 8 days and was beaten
mercilessly. He further admitted that in the first statement of Govind
Singh, the name of Harnam Singh was not mentioned. He further
admitted that no Rojnamchasanha has been produced but admitted
that whenever any police officer leaves the police station, then he has
to mention the same in Rojnamchasanha. He admitted that till 24-4-
2009, no body had alleged against Jagdish. He claimed that
information regarding Jagdish was given by an informer, and
accordingly, he was interrogated. He further claimed that the fact of
information is mentioned in Rojnamchasanha, but admitted that no
such Rojnamchasanha has been produced. He further admitted that
after receiving information about Jagdish, he went along with T.I.
Bairad, S.O., Subhashpura, police personnel of Police Station and the
witnesses. He further admitted that Devraj is the witness of recovery
memo of Vijay and Bablu as well as of Supurdagi Memo. An amount
of Rs.1,90,000/- was recovered from a place having various houses at
nearby places. He further admitted that he had not interrogated
anybody regarding the identification of the house of Jagdish. He
further admitted that neither the police station having territorial
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
jurisdiction over the place where Jagdish resides was informed nor
any local police personnel was taken with them. The supplementary
statement of Govind Singh were recorded on 21-4-2009, in which he
had disclosed that he had signed some currency notes. He further
claimed that at the time of counting the currency notes, he had seen
the signatures, but admitted that this fact is not mentioned in the
seizure memo. He further admitted that the details of denomination
of currency notes is also not mentioned in seizure memo. He further
admitted that in seizure memo Ex. P.7, there is an overwriting on total
number of currency notes of denomination of Rs.1000/- and Rs.50/-.
He further stated that the currency notes were sealed and were
deposited in Malkhana but in absence of Malkhana register, this
witness was unable to say that on which date, the currency notes were
taken out of the Malkhana.
36. Vinay Kumar (P.W.12) is a witness of confessional statement of
Harkanth, Ex. P.13.
37. Thus, on appreciation of above mentioned witnesses, the
following circumstances arises :
(i) Govind Singh (P.W.1), Vijay Singh (P.W.2) and Bablu (P.W.3)
had gone to attend Bhandara which was organized on account of
Shivratri.
(ii) Govind Singh (P.W.1), Vijay Singh (P.W.2) and Bablu (P.W.3)
were allegedly abducted while they were returning back.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
(iii) While Govind Singh (P.W.1), Vijay Singh (P.W.2) and Bablu
(P.W.3) were being taken inside the forest, one more miscreant came
out of the bushes, who according to the prosecution was Harnam
Singh.
(iv) Govind Singh (P.W.1), Harnam Singh (Appellant) and Aafaq
Ahmed Siddique (P.W.4) are the employees of forest department.
(v) Vijay Singh (P.W.2) informed Saraswati (P.W.5) about their
abduction.
(vi) Aafaq Ahmed Siddique (P.W.4) lodged F.I.R., Ex. P.3.
(vii) On 26-2-2009, Govind Singh (P.W. 1) was released by the
miscreants with an instruction that further instruction shall be given.
(viii) Recovery memo of Govind Singh (P.W.1), Ex. P.1 was prepared
on 26-2-2009.
(ix) 2 days after his release, Govind Singh (P.W.1) got an
information that an amount of Rs.10 lac is to be paid for release of
Vijay Singh (P.W.2) and Bablu (P.W.3).
(x) on 5th, Govind Singh (P.W.1) paid Rs.10 lacs and accordingly,
Vijay (P.W.2) and Bablu (P.W.3) were released.
(xi) Recovery Memo, Ex. P.2 of Vijay (P.W.2) and Bablu (P.W.3)
was prepared.
(x) Harnam and Harkanth were arrested. Confessional statement,
Ex. P.13 and P.10 of Harkanth were prepared.
(xi) Bhagwan Singh, father of Harkanth, produced Rs.25,000/-
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
which were seized vide seizure memo Ex. P.11.
(xii) An information regarding involvement of Jagdish was
received.
(xiii) An amount of Rs.1,90,000/- was seized on the disclosure made
by Jagdish vide seizure memo Ex. P.7.
38. At the cost of repetition, it is once again mentioned that in
para 16-20 of the Judgment, the Trial Court has come to a
conclusion that the confessional statements, Ex. P.10 and P.13 of
Harkanth are forged document and were prepared at a later stage.
Whether Govind Singh (P.W.1), Vijay Singh (P.W.2) and Bablu
(P.W.3) were ever abducted or not?
FIR
39. It is the case of the prosecution that Govind Singh (P.W.1),
Vijay Singh (P.W.2) and Bablu Yadav (P.W.3) were returning back on
24-2-2009. While they were on their way, they were abducted along
with their motorcycles. The motorcycles were left after moving for
50 meters inside the forest area. It is also the case of the prosecution
that on the next date i.e., 25-2-2009, Vijay Singh (P.W.2) was directed
by the miscreants to inform his family members regarding their
abduction and accordingly he informed Saraswati Prasad
Kulshreshtha (P.W.5) about their abduction and accordingly, Aafaq
Ahmed Siddique (P.W. 4) was informed about abduction and F.I.R.,
Ex. P.3 was lodged.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
40. However, in the F.I.R., Ex. P.3, which was lodged on 25-2-2009
at 11 A.M., Aafaq Ahmed Siddique (P.W.4) did not mention that
Govind Singh (P.W.1), Vijay Singh (P.W.2) and Bablu Yadav (P.W.3)
have been abducted by Rajendra Gatta. On the contrary, it is also
mentioned in the F.I.R., Ex.P.3, that Govind Singh (P.W.1), Vijay
Singh (P.W.2) and Bablu (P.W.3) have not reached to their house.
Thereafter, he went to nursery and tried to gather information with the
help of Police and Chowkidars, but could not get any information. It
was also mentioned that Vijay (P.W.2) has informed Saraswati
Shrivastava (P.W. 5) about abduction.
41. If the police had received the information for the first time after
the lodging of F.I.R., then there was no question of searching of
Govind Singh (P.W.1), Vijay Singh (P.W.2) and Bablu (P.W.3) by
Aafaq Ahmed Siddique (P.W.4) along with Police and Chowkidars.
Further, if Aafaq Ahmed Siddique (P.W.4) was already aware of the
fact that Vijay Singh (P.W.2) has informed Saraswati (P.W.5) about
his abduction, then there was no question of not disclosing the names
of the miscreants in the F.I.R., Ex. P.3. Further, Aafaq Ahmed
Siddique (P.W.4) has stated in his Court evidence that he was
informed by the daughter of Govind Singh (P.W.1) about abduction,
but that fact is also missing in F.I.R., Ex. P.3. Aafaq Ahmad Siddique
(P.W. 4) also could not justify the above mentioned omissions in his
F.I.R., Ex. P.3. Thus, it appears that on 25-2-2009, till 11 A.M., Aafaq
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Ahmed Siddique (P.W.4) was not aware of the names of the
miscreants and even Saraswati (P.W.5) did not inform the police.
Further, when the police had already searched for the missing
persons, even prior to lodging of F.I.R., then it is clear that the
prosecution has suppressed the information which was firstly
received by the police.
42. Further in the F.I.R., Ex. P.3, it is also mentioned that Vijay
Singh (P.W.2) has informed Saraswati Shrivastava (P.W.5) about their
abduction, but the police did not record the statements of Saraswati
(P.W.5) immediately and according to Dilip Singh Yadav (P.W. 11)
the statements of Saraswati (P.W.5) were recorded on 1-3-2009.
43. Further Saraswati Prasad Kulshreshtha (P.W.5) has stated that
on 25-2-2009 at about 7.24 A.M., he had received a telephonic call
from Vijay Singh (P.W.2) who informed that they have been abducted
by Rajendra Gurjar, Saligram Gurjar, Pappu Gurjar and one more
miscreant. Thus, it is clear that even Vijay Singh (P.W.2) did not
disclose the name of any of the appellant i.e., Harnam Singh and
Harkanth to Saraswati Prasad Kulshreshtha (P.W.5).
44. If Govind Singh (P.W. 1), Vijay Singh (P.W.2) and Bablu Yadav
(P.W.3) had already identified the appellants Harnam and Harkanth,
then there was no reason for not disclosing their names to Saraswati
Prasad Kulshreshtha (P.W.5). Thus, it is clear that the involvement of
Harnam Singh and Harkanth in the offence becomes suspicious.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
However, the effect of omission of names of appellants Harnam
Singh and Harkanth in F.I.R., Ex. P.3, as well as the effect of evidence
of Saraswati Prasad Kulshreshtha (P.W.5) shall be considered along
with other circumstances.
Non-recording of statement of Govind Singh (P.W.1) on 26-2-2009
45. According to Govind Singh (P.W.1) he was released by the
miscreants on 26-2-2009 and thereafter he went back to his house
and the police also prepared his recovery memo Ex. P.1.
46. Surprisingly, the statement of Govind Singh (P.W.1) was
recorded for the first time on 6-3-2009. From recovery memo of
Govind Singh (P.W.1), Ex. P.1, it appears that Govind Singh (P.W.1)
was already available to the police on 26-2-2009. He was the best
person to disclose the names of the miscreants as well as about the
incident to the police, but surprisingly, there is nothing on record to
suggest that either the police had recorded his statement under
Section 161 of Cr.P.C., or any other investigation was done as per the
disclosure by Govind Singh (P.W.1). Further according to Dilip
Singh Yadav (P.W.11), the statement of Govind Singh (P.W.1) was
recorded for the first time on 6-3-2009. It is true that the defence has
not asked any question to Dilip Singh Yadav (P.W. 11) about the
reasons for delayed recording of statement of Govind Singh (P.W.1),
but in the considered opinion of this Court, this lapse on the part of
the defence, would not save the prosecution from the deep dent.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Once, one of the abductee was already available to the police, and
two more were in the captivity of the miscreants, then it was always
expected from the police to have investigated the matter in order to
save the lives of the remaining two abductees. Even from the
evidence of Dilip Singh Yadav (P.W. 11), it is clear that from 26-2-
2009, till 6-3-2009, nothing was done by him in order to save the
abductees. Thus, the non-recording of statement of Govind Singh
(P.W.1) on 26-2-2009 and no investigation by the police till 6-3-2009
also gives a deep dent to the prosecution story. However, the above
mentioned lapse shall also be considered along with remaining
circumstances.
Source of information regarding demand of ransom
47. It is stated by Govind Singh (P.W.1) that after two days of his
release, he got an information that he has to pay a ransom of Rs.10
lacs in order to save the life of his son.
48. However, the prosecution is completely silent that what was
the source of information. According to prosecution, Vijay Singh
(P.W. 2) was having his mobile with him. It is not the case of the
prosecution that the demand of Rs.10 lacs was made by making a
telephonic call from the mobile of Vijay Singh (P.W.2). It is also not
the case of the prosecution, that the information regarding demand of
ransom was made through some messenger. It is also not the case of
the prosecution, that any letter of demand of ransom was sent to
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Govind Singh (P.W.1). Thus, in absence of any source of information
regarding the demand of ransom of Rs.10 lacs, it is held that the
prosecution has failed to prove this vital circumstance.
From where the amount of Rs.10 lacs was collected/arranged by
Govind Singh (P.W.1)
49. Although Govind Singh (P.W.1) has stated in his evidence that
he had collected the amount of Rs.10 lacs from his relatives, but
neither the names of those persons have been disclosed, nor any of
them have been examined. Govind Singh (P.W.1) has also stated that
the said amount of Rs.10 lacs was not withdrawn from the Bank.
Thus, the prosecution has also failed to prove the source of amount of
Rs.10 lacs.
Where the amount of Rs. 10 lacs was paid to Rajendra Gatta
50. According to Govind Singh (P.W.1), the amount of Rs.10 lacs
was paid to Rajendra Gatta on 5 th. However, the prosecution is
completely silent as to where the amount of Rs. 10 lacs was paid. The
prosecution is also completely silent that any destination was also
informed to Govind Singh (P.W.1) at the time of making demand of
Rs.10 Lacs. Thus, the prosecution has failed to prove that any
information regarding the place of payment was ever given, and has
also failed to prove that at which place, the amount of Rs.10 lacs was
paid.
Whether some of the currency notes paid by Govind Singh (P.W.1)
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
were signed by Govind Singh (P.W.1) or not?
51. It is the prosecution story, that some of the currency notes were
signed by Govind Singh (P.W.1).
52. It is stated by Vijay Singh (P.W.2) that after the ransom was
paid by his father, Vijay Singh (P.W.2) was asked to count the money
which was done by him. Surprisingly, Vijay Singh (P.W. 2) has not
stated that while counting the money, he had seen that some of the
currency notes were signed by Govind Singh (P.W.1). Similarly, it is
prosecution story, that an amount of Rs.1,90,000/- was seized from
the possession of appellant Jagdish, whereas an amount of
Rs.25,000/- was provided to the police, by father of Harkanth.
Rs.1,90,000/- were seized vide seizure memo Ex. P.7. In the seizure
memo, Ex. P.7, the details of denomination of currency notes have
been given (although there is overwriting on the number of currency
notes), but even in the seizure memo, it is not mentioned that some of
the seized currency notes bears the signatures of Govind Singh
(P.W.1). Similarly, an amount of Rs.25,000/- was seized from
Bhagwan Singh, father of Harkanth, vide seizure memo Ex. P. 11, but
Dilip Singh Yadav (P.W.11) who had seized the amount has
specifically stated that the words "6 currency notes bears the
signatures of Govind Singh" are not in his handwriting. Further, it is
clear from the findings recorded by the Trial Court in para 19 of its
judgment as well as in para 6 of evidence of Dilip Singh Yadav
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
(P.W.11) that even in the photocopy of the seizure memo Ex. P.11,
which is the part of case diary, the words "6 currency notes bears the
signatures of Govind Singh" are not mentioned. Further in para 20 of
the judgment, the Trial Court has also disbelieved the prosecution
case of recovery of Rs.25,000/- on the disclosure made by Harkanth.
Thus, it is clear that the prosecution has failed to prove that the
amount of Rs.10 lacs was paid by Govind Singh (P.W.11) by putting
his signatures on some of the currency notes.
Whether the payment of ransom amount has been proved and
whether the prosecution has proved that Vijay Singh (P.W.2) and
Bablu Yadav (P.W. 3) were released by the miscreants after payment
of Rs.10 Lacs ?
53. Govind Singh (P.W.1) has stated that his son Vijay (P.W.1) and
servant Bablu (P.W.3) were released after making payment of Rs.10
lacs, and he brought them to police station. Whereas Bablu Yadav
(P.W.3) has stated that on 5th, the miscreants were sleeping and
accordingly, taking advantage of the said fact, he and Vijay Singh
(P.W.2) had run away. Vijay Singh (P.W.2) has stated that his father
Govind Singh (P.W.1) had not given any money in his presence. After
taking money, the miscreants came back, and had got the money
counted from this witness. He further could not justify as to why the
fact of getting released after payment of Rs.10 lacs is not mentioned
in his police statement.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
54. It is not out of place to mention here that although the defence
counsel had drawn the attention of the witnesses, to certain omissions
in their police statements, but the police statements of the witnesses
were not marked as Exhibit. In the considered opinion of this Court,
it is merely an irregularity on the part of the Defence Counsel, as the
attention of the witnesses were drawn and opportunity was given to
them to explain the omissions. Thus, the requirement of Section 145
of Evidence Act was fulfilled, therefore, the omissions and
contradictions in the police statements are being taken into
consideration. However, it appears that during the Trial of another
absconding accused persons, the police statements of Govind Singh,
Vijay Singh, Bablu Yadav, Saraswati Prasad, were exhibited as "D"
documents.
55. By way of abundant caution, this Court has gone through the
police statements of Govind Singh (P.W.1), Vijay Singh (P.W.2) and
Bablu Yadav (P.W.3).
56. The police statement of Govind Singh (P.W.1) does not bear
the date on which it was recorded. However, Dilip Singh Yadav
(P.W.11) has stated that he had recorded the statements of Govind
Singh (P.W.1), Vijay Singh (P.W.2) and Bablu Yadav (P.W.3) on 6-3-
2009. In the police statement of Govind Singh (P.W.1), there is no
mention of demand and payment of Rs.10 lacs. However, it appears
that a supplementary statement of Govind Singh (P.W.1) was also
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
recorded, in which it was claimed by Govind Singh (P.W.1) that he
had received an information regarding demand of Rs.10 lacs and
accordingly, it was paid. According to Dilip Singh Yadav (P.W.11),
the supplementary statement of Govind Singh (P.W.1) was recorded
on 21-4-2009. As already pointed out that, in the separate trial
against the absconding co-accused Saligram, the police statement of
Govind Singh (P.W.1) was exhibited as Ex.D.1. Be that as it may.
When no allegation of demand of Rs.10 lacs and payment of the
same was made by Govind Singh (P.W.1) on 6-3-2009, whereas the
other two abductees were already released and had returned, then it is
clear that in fact no demand of ransom of Rs.10 lacs was ever made
and as the prosecution has failed to prove that how Govind Singh
(P.W.1) got information regarding demand of ransom of Rs.10 lacs,
as well as the prosecution has also failed to prove that from which
source, the amount of Rs.10 lacs was collected by Govind Singh
(P.W.1) and at which place, the said amount was paid. Further, there
are major omissions and contradictions in the statements of the
witnesses. Although Vijay Singh (P.W. 2) had claimed that they were
released only after an amount of Rs.10 lacs was paid, but this fact is
not mentioned in his police statement. On the contrary, it is
mentioned in the police statement of Vijay Singh (P.W. 2), that on one
date, the miscreants found that the police has reached to the forest
area, therefore, their chains were opened and thereafter, taking
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
advantage of the situation, Vijay Singh (P.W. 2) and Bablu (P.W.3)
ran away. Bablu Yadav (P.W.3) had also stated in similar lines in his
police statement. Further, for the first time, the allegation of demand
of Ransom and payment of same was made on 21-4-2009.
57. Thus, it is clear that for the first time, the story of demand of
ransom and payment of Rs.10 lacs was developed on 21-4-2009.
This clearly shows that the prosecution was concocting and creating
false evidence in the matter, in order to falsely implicate the
appellants Jagdish, Harkanth and Harnam Singh.
58. Thus, it is clear that neither any demand of ransom of Rs.10
lacs was made, nor any money was paid and even the prosecution has
failed to prove that the abductees namely, Vijay Singh (P.W.2) and
Bablu Yadav (P.W.3) were released after payment of any ransom
amount.
Production of Rs.25,000/- by Bhagwan Singh, the father of
Harkanth.
59. The Trial Court in para 16-20 of its judgment has already come
to a conclusion that the seizure memorandums Ex. P.10 and Ex. P.13
are forged and concocted documents, and the prosecution has failed
to prove that Bhagwan Singh had produced Rs.25,000/- on the
memorandum made by Harkanth. Thus, it is held that the prosecution
has failed to prove, that an amount of Rs.25,000/- was recovered
from Bhagwan Singh on the memorandum, Ex. P.10 and P.13 of
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Harkanth.
Whether the prosecution has failed to prove the involvement of
Jagdish in the offence and whether Recovery of Rs.1,90,000/- from
his possession would connect him with this case?
60. It is the prosecution case, that only during the investigation,
the investigating officer, came to know about the involvement of
Jagdish on the information given by an informer. There is no
substantive evidence to prove that the appellant Jagdish has kept
some ransom amount with him. Jagdish has been convicted under
Section 412 of I.P.C. Except the confessional statement of Jagdish
recorded under Section 27 of Evidence Act, and recovery of
Rs.1,90,000/-, there is nothing against Jagdish. So far as the
confessional statement of Jagdish is concerned, the same is not
admissible in the light of Sections 25 and 26 of Evidence Act. Now
the only question remains is about the seizure of Rs.1,90,000/-, out of
which some of the currency notes were bearing the signatures of
Govind Singh (P.W.1).
61. Dilip Singh Yadav (P.W.11) has stated in para 12 of his cross-
examination, that till 24-4-2009, no body had stated anything against
Jagdish. However, he received an information from an informer, and
accordingly, he had arrested Jagdish. However, he further claimed
that without going through the Rojnamchasanha, he cannot say as to
whether the information given by an informer was recorded in
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Rojnamchasanha or not? He further admitted that he has not filed
any such Rojnamchasanha in the case. Thus, the prosecution has
failed to prove that the investigating officer had received any
information against Jagdish.
62. Further, this Court has already come to a conclusion that in the
seizure memo, Ex. P.7, it is not mentioned that some of the currency
notes bears the signatures of Govind Singh (P.W.1). Although the
investigating officer, Dilip Singh Yadav (P.W.11) has stated in his
evidence, that while calculating the currency notes of Rs.1,90,000/-
he had seen signatures of Govind Singh, but also admitted that this
fact is not mentioned in the seizure memo, Ex. P.7. Further, Dilip
Singh (P.W.11) in para 15 of his cross-examination has stated that no
currency note of denomination of Rs.500/- was recovered, whereas
Govind Singh (P.W.1) has stated that he had given currency notes of
all denominations including Rs.500/. Further Amol Singh (P.W. 6),
the seizure witness, has stated that currency notes of denominations
of Rs.1000/-, Rs.500/-, Rs.100/- and Rs.50/- were recovered from the
possession of Jagdish. Thus, it is clear that none of the witness has
corroborated the evidence of each other and there is a substantive
variance in their evidence on this vital issue. Further, the Trial Court
itself has come to a conclusion about preparation of false and
concocted memorandum of Harkanth, Ex. P.10 and P.13 and has also
disbelieved the recovery of Rs.25,000/- on the memorandum of
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Harkanth. As this Court has already come to a conclusion that the
prosecution has failed to prove that any ransom amount was paid by
Govind Singh (P.W.1), it is held that the prosecution has failed to
prove that the amount of Rs.1,90,000/- allegedly recovered from the
possession of Jagdish was a part of ransom amount, as the theory of
signing some of the currency notes by Govind Singh (P.W. 1) came
into picture only after 21-4-2009, when the story of demand of
ransom and payment of ransom came into existence for the first time.
Conclusion
63. In view of the evidence led by the prosecution case, it is held
that the prosecution has failed to prove that Govind Singh (P.W.1),
Vijay Singh (P.W.2) and Bablu Yadav (P.W.3) were ever abducted by
Appellants Harkanth and Harnam Singh. The prosecution has also
failed to prove that any demand of Ransom amount of Rs.10 lacs was
ever made and has also failed to prove that the said amount was paid
by Govind Singh (P.W.1). The prosecution has also failed to prove
that Vijay Singh (P.W.2) and Bablu Yadav (P.W.3) were released only
after payment of ransom amount. Further, the story of demand of
ransom and payment of Rs.10 lacs came into existence for the first
time on 21-4-2009 i.e., after more than 45 days of return of Vijay
Singh (P.W.2) and Bablu (P.W.3). Even the prosecution has failed to
prove that from which source the amount of Rs.10 lacs was arranged
by Govind Singh (P.W.1). Neither the names of the relatives of
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Govind Singh (P.W.1) have come on record, nor any of the relative
of Govind Singh (P.W.1) has been examined in this regard. Even the
mode of information/instruction regarding demand of ransom amount
could not be proved by the prosecution. The prosecution has also
failed to prove, that at what time and at which place, the ransom
amount was paid to Rajendra Gatta. Even the prosecution has failed
to prove, that as to how Govind Singh (P.W.1) came to know about
the time and place, where ransom was to be paid. Further, Govind
Singh (P.W.1) in his police statement has not disclosed the names of
Harkanth and Harnam Singh, whereas Harnam Singh is the employee
of Forest Department itself. Further, the prosecution has also failed to
prove the involvement of Jagdish in the case and has also failed to
prove that the amount of Rs.1,90,000/- allegedly recovered from the
possession of Jagdish was part of ransom amount. There is no
substantive evidence against Jagdish to prove that he was given
money out of the so called ransom amount. It is also not out of place
to mention here that initially no charge under Section 412 of I.P.C.
was framed against Jagdish and surprisingly, the Trial Court framed
charge under Section 412 of I.P.C. on 11-3-2010, whereas final
arguments were already heard on 5-3-2010 and the case was fixed for
delivery of judgment on 11-3-2010. By order dated 11-3-2010, the
Trial Court framed charge under Section 412 of I.P.C. and thereafter,
observed that the appellants have expressed that they do not want to
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
lead any evidence in their defence and after hearing arguments on the
charge under Section 412 of I.P.C., the judgment was also
pronounced on the very same day. The manner in which the Trial
Court proceeded against Jagdish on the question of charge under
Section 412 of I.P.C., clearly indicates, that prejudice was caused to
him.
64. Accordingly, the appellants Harkanth, and Harnam Singh are
acquitted of charge under Section 364-A of I.P.C. read with Section
11/13 of M.P.D.V.P.K. Act and similarly, the appellant Jagdish is
acquitted of charge under Section 412 of I.P.C.
65. Ex Consequenti, the judgment and sentence dated 11-3-2010
passed by Special Judge (MPDVPK Act), Shivpuri, in Special
Sessions Trial No.47/2009, is hereby Set Aside.
66. By order dated 15-7-2009, Special Judge, Shivpuri prior to
filing of charge sheet, had directed that out of total amount of
Rs.2,15,000/- i.e., Rs.1,90,000/- recovered from the possession of
Jagdish and Rs.25,000/- produced by father of Harkanth, the currency
notes, which are bearing the signatures of Govind Singh (P.W.1) be
separated and the remaining amount be deposited in the F.D.R., so
that the eligible person may not suffer the loss of interest.
Accordingly, it appears that Rs.2 lacs were deposited in F.D.R. No.
139186 of Oriental Bank of Commerce. It is also clear from the
record, that 14 currency notes of denomination of Rs.1000/- and 10
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
currency notes of denomination of Rs.100 were separated as they
were allegedly containing the signatures of Govind Singh (P.W.1) and
were produced before the Court as Article A-1 to A-24.
67. Since, this Court has come to a conclusion that the amount of
Rs.25,000/- allegedly recovered from the possession of the father of
Harkanth on the memorandum of Harkanth, Ex. P.10 and P.13 was
falsely prepared and the prosecution has also failed to prove that the
amount of Rs.1,90,000/- recovered from the possession of Jagdish
was part of alleged ransom amount, therefore, it is directed that
Bhagwan Singh/Harkanth are entitled for refund of Rs.25,000/- and
Jagdish is also entitled for refund of Rs.1,90,000/-. From the
photocopy of F.D.R., which is available in the record of the Trial
Court, it is clear that interest @ 7.5% was payable. Thus, it is held
that Bhagwan Singh/Harkanth and Jagdish are also entitled for
interest @7.5% till its actual payment. In case if any appeal is filed
against this judgment, then the direction for refund of money shall be
subject to the outcome of Appeal.
68. This Court by order dated 28-6-2010 had directed for refund of
Rs.1,90,000/- to Govind Singh (P.W.1) on furnishing security by
Govind Singh (P.W.1) to the satisfaction of the Trial Court.
Therefore, Govind Singh (P.W.1) is directed to immediately deposit
the amount of Rs.1,90,000/- with interest @ 7.5% payable from the
date of recovery of Rs.1,90,000/- from Jagdish i.e., 24-4-2009 till the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
said amount is actually deposited in the Trial Court. Let the amount
be deposited by Govind Singh (P.W.1) before the Trial Court, within
a period of 3 months from today.
69. The Trial Court in para 16-20 of the impugned judgment had
come to a conclusion that memorandum of Harkanth, Ex. P.10 and
P.13 are false and concocted documents and in para 36 of Judgment,
had also issued notices to Dilip Singh Yadav (P.W.11) and Charan Lal
Uike (P.W.10) to show cause as to why action be not taken against
them. However, it is not clear from the record that any further
proceeding was ever taken or even show cause notice was actually
issued to Dilip Singh Yadav (P.W.11) and Charanlal Uike (P.W.10).
However, one thing is clear that the Trial Court had found that a part
of the investigation was a forged one, whereas this Court has found
that the entire prosecution was false and concocted.
70. The appellant Harnam Singh had remained in jail for a period
of 111 days, Harkanth for a period of 97 days and Jagdish for a
period of 118 days as undertrial.
71. In the present appeal, the appellant Jagdish was granted bail by
order dated 28-6-2010. However, the appellants Harkanth and
Harnam Singh were never granted bail by this Court and thus, they
are in jail from the date of impugned judgment and sentence i.e., 11-
3-2010. However, from the report of Central Jail, they were released
on temporary parole for a period of 90 days in the wake of second
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
wave of Covid 19 Pandemic i.e., upto 12-8-2021 and 8-8-2021
respectively. Be that as it may.
72. The crux of the matter is that the appellant Jagdish has
remained in jail for a period of 111 days + 107 days (after conviction)
= 218 days, whereas the appellants Harnam Singh and Harkanth have
remained in jail for approximately 12 years. They have been found to
be innocent and have been found to be falsely implicated for oblique
motives.
73. The Supreme Court in the case of Dayal Singh and others
Vs.State reported in AIR 2012 SC 3046 has held as under :
16. The Investigating Officer, as well as the doctor who are
dealing with the investigation of a criminal case, are
obliged to act in accordance with the police manual and the
known canons of medical practice, respectively. They are
both obliged to be diligent, truthful and fair in their
approach and investigation. A default or breach of duty,
intentionally or otherwise, can sometimes prove fatal to the
case of the prosecution. An Investigating Officer is
completely responsible and answerable for the manner and
methodology adopted in completing his investigation.
Where the default and omission is so flagrant that it speaks
volumes of a deliberate act or such irresponsible attitude of
investigation, no court can afford to overlook it, whether it
did or did not cause prejudice to the case of the
prosecution........
* * *
28. Where our criminal justice system provides safeguards
of fair trial and innocent till proven guilty to an accused,
there it also contemplates that a criminal trial is meant for
doing justice to all, the accused, the society and a fair
chance to prove to the prosecution. Then alone can law and
order be maintained. The Courts do not merely discharge
the function to ensure that no innocent man is punished, but
also that a guilty man does not escape. Both are public
duties of the judge. During the course of the trial, the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
learned Presiding Judge is expected to work objectively and
in a correct perspective. Where the prosecution attempts to
misdirect the trial on the basis of a perfunctory or
designedly defective investigation, there the Court is to be
deeply cautious and ensure that despite such an attempt, the
determinative process is not sub-served. For truly attaining
this object of a 'fair trial', the Court should leave no stone
unturned to do justice and protect the interest of the society
as well.
74. Now the only question for determination is that under the facts
and circumstances of the case, whether it is feasible to direct for
prosecution of witnesses who have given false evidence or not?
75. Section 340 of Cr.P.C. reads as under :
340. Procedure in cases mentioned in Section 195.--(1)
When, upon an application made to it in this behalf or
otherwise, any Court is of opinion that it is expedient in the
interests of justice that an inquiry should be made into any
offence referred to in clause (b) of sub-section (1) of
Section 195, which appears to have been committed in or in
relation to a proceeding in that Court or, as the case may be,
in respect of a document produced or given in evidence in a
proceeding in that Court, such Court may, after such
preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having
jurisdiction;
(d) take sufficient security for the appearance of the
accused before such Magistrate, or if the alleged offence is
non-bailable and the Court thinks it necessary so to do,
send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before
such Magistrate.
(2) The power conferred on a Court by sub-section (1) in
respect of an offence may, in any case where that Court has
neither made a complaint under sub-section (1) in respect of
that offence nor rejected an application for the making of
such complaint, be exercised by the Court to which such
former Court is subordinate within the meaning of sub-
section (4) of Section 195.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
(3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court,
by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court
or by such officer of the Court as the Court may authorise
in writing in this behalf.
(4) In this section, "Court" has the same meaning as in
Section 195.
76. The Supreme Court in the case of K.T.M.S. Mohd. v. Union
of India, reported in (1992) 3 SCC 178 has held as under :
35. In this context, reference may be made to Section 340 of
the Code of Criminal Procedure under Chapter XXVI under
the heading "Provisions as to Offences Affecting the
Administration of Justice". This section confers an inherent
power on a court to make a complaint in respect of an
offence committed in or in relation to a proceeding in that
court, or as the case may be, in respect of a document
produced or given in evidence in a proceeding in that court,
if that court is of opinion that it is expedient in the interest
of justice that an enquiry should be made into an offence
referred to in clause (b) of sub-section (1) of Section 195
and authorises such court to hold preliminary enquiry as it
thinks necessary and then make a complaint thereof in
writing after recording a finding to that effect as
contemplated under sub-section (1) of Section 340. The
words "in or in relation to a proceeding in that court" show
that the court which can take action under this section is
only the court operating within the definition of Section
195(3) before which or in relation to whose proceeding the
offence has been committed. There is a word of caution
inbuilt in that provision itself that the action to be taken
should be expedient in the interest of justice. Therefore, it is
incumbent that the power given by Section 340 of the Code
should be used with utmost care and after due consideration.
The scope of Section 340(1) which corresponds to Section
476(1) of the old Code was examined by this Court in K.
Karunakaran v. T.V. Eachara Warrier and in that decision, it
has observed: (SCC pp. 25 and 26, paras 21 and 26)
"At an enquiry held by the Court under Section 340(1),
CrPC, irrespective of the result of the main case, the only
question is whether a prima facie case is made out which, if
unrebutted, may have a reasonable likelihood to establish
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
the specified offence and whether it is also expedient in the
interest of justice to take such action.
... The two per-conditions are that the materials produced
before the High Court make out a prima facie case for a
complaint and secondly that it is expedient in the interest of
justice to permit the prosecution under Section 193 IPC."
36. The above provisions of Section 340 of the Code of
Criminal Procedure are alluded only for the purpose of
showing that necessary care and caution are to be taken
before initiating a criminal proceeding for perjury against
the deponent of contradictory statements in a judicial
proceeding.
77. The Supreme Court in the case of State (NCT of Delhi) v.
Pankaj Chaudhary, reported in (2019) 11 SCC 575 has held as
under :
49. There are two preconditions for initiating proceedings
under Section 340 CrPC:
(i) materials produced before the court must make out a
prima facie case for a complaint for the purpose of inquiry
into an offence referred to in clause (b)(i) of sub-section (1)
of Section 195 CrPC, and
(ii) it is expedient in the interests of justice that an inquiry
should be made into the alleged offence.
50. Observing that the court has to be satisfied as to the
prima facie case for a complaint for the purpose of inquiry
into an offence under Section 195(1)(b) CrPC, this Court in
Amarsang Nathaji v. Hardik Harshadbhai Patel held as
under: (SCC pp. 117-18, paras 6-8)
"6. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always
sufficient to justify a prosecution under Sections 199 and
200 of the Penal Code, 1860 (45 of 1860) (hereinafter
referred to as "IPC"); but it must be shown that the
defendant has intentionally given a false statement at any
stage of the judicial proceedings or fabricated false
evidence for the purpose of using the same at any stage of
the judicial proceedings. Even after the above position has
emerged also, still the court has to form an opinion that it is
expedient in the interests of justice to initiate an inquiry into
the offences of false evidence and offences against public
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
justice and more specifically referred to in Section 340(1)
CrPC, having regard to the overall factual matrix as well as
the probable consequences of such a prosecution. (See
K.T.M.S. Mohd. v. Union of India.) The court must be
satisfied that such an inquiry is required in the interests of
justice and appropriate in the facts of the case.
7. In the process of formation of opinion by the court that it
is expedient in the interests of justice that an inquiry should
be made into, the requirement should only be to have a
prima facie satisfaction of the offence which appears to
have been committed. It is open to the court to hold a
preliminary inquiry though it is not mandatory. In case, the
court is otherwise in a position to form such an opinion, that
it appears to the court that an offence as referred to under
Section 340 CrPC has been committed, the court may
dispense with the preliminary inquiry. Even after forming
an opinion as to the offence which appears to have been
committed also, it is not mandatory that a complaint should
be filed as a matter of course. (See Pritish v. State of
Maharashtra.)
8. In Iqbal Singh Marwah v. Meenakshi Marwah, a
Constitution Bench of this Court has gone into the scope of
Section 340 CrPC. Para 23 deals with the relevant
consideration: (SCC pp. 386-87)
'23. In view of the language used in Section 340 CrPC the
court is not bound to make a complaint regarding
commission of an offence referred to in Section 195(1)(b),
as the section is conditioned by the words "court is of
opinion that it is expedient in the interests of justice". This
shows that such a course will be adopted only if the interest
of justice requires and not in every case. Before filing of the
complaint, the court may hold a preliminary enquiry and
record a finding to the effect that it is expedient in the
interests of justice that enquiry should be made into any of
the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court by
weighing not the magnitude of injury suffered by the person
affected by such forgery or forged document, but having
regard to the effect or impact, such commission of offence
has upon administration of justice. It is possible that such
forged document or forgery may cause a very serious or
substantial injury to a person in the sense that it may
deprive him of a very valuable property or status or the like,
but such document may be just a piece of evidence
produced or given in evidence in court, where voluminous
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
evidence may have been adduced and the effect of such
piece of evidence on the broad concept of administration of
justice may be minimal. In such circumstances, the court
may not consider it expedient in the interest of justice to
make a complaint.' "
The same principle was reiterated in Chintamani Malviya v.
High Court of M.P.
78. If the facts of this case are considered in the light of law laid
down by the Supreme Court with regard to prosecution of witnesses
for giving false evidence, then it is clear that the entire case is based
on created and concocted evidence. The police has not collected the
evidence but has created false evidence. Therefore, this Court is of
the considered opinion, that it is a fit case for directing prosecution of
Govind Singh (P.W.1), Vijay Singh (P.W.2), Bablu Yadav (P.W.3),
Charan Lal Uike (P.W.10) and Dilip Singh Yadav (P.W.11) for giving
false evidence before the Court.
79. The next question for consideration is that whether a
preliminary enquiry is required or the direction can be issued on the
basis of prima facie opinion formed by this Court after meticulous
appreciation of evidence.
80. The Supreme Court in the case of Pritish v. State of
Maharashtra, reported in (2002) 1 SCC 253 has held as under :
9. Reading of the sub-section makes it clear that the hub of
this provision is formation of an opinion by the court
(before which proceedings were to be held) that it is
expedient in the interest of justice that an inquiry should be
made into an offence which appears to have been
committed. In order to form such opinion the court is
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
empowered to hold a preliminary inquiry. It is not
peremptory that such preliminary inquiry should be held.
Even without such preliminary inquiry the court can form
such an opinion when it appears to the court that an offence
has been committed in relation to a proceeding in that
court. It is important to notice that even when the court
forms such an opinion it is not mandatory that the court
should make a complaint. This sub-section has conferred a
power on the court to do so. It does not mean that the court
should, as a matter of course, make a complaint. But once
the court decides to do so, then the court should make a
finding to the effect that on the fact situation it is expedient
in the interest of justice that the offence should further be
probed into. If the court finds it necessary to conduct a
preliminary inquiry to reach such a finding it is always
open to the court to do so, though absence of any such
preliminary inquiry would not vitiate a finding reached by
the court regarding its opinion. It should again be
remembered that the preliminary inquiry contemplated in
the sub-section is not for finding whether any particular
person is guilty or not. Far from that, the purpose of
preliminary inquiry, even if the court opts to conduct it, is
only to decide whether it is expedient in the interest of
justice to inquire into the offence which appears to have
been committed.
81. The Supreme Court in the case of Amarsang Nathaji v.
Hardik Harshadbhai Patel, reported in (2017) 1 SCC 11 has held
as under :
7. In the process of formation of opinion by the court that it
is expedient in the interests of justice that an inquiry should
be made into, the requirement should only be to have a
prima facie satisfaction of the offence which appears to have
been committed. It is open to the court to hold a preliminary
inquiry though it is not mandatory. In case, the court is
otherwise in a position to form such an opinion, that it
appears to the court that an offence as referred to under
Section 340 CrPC has been committed, the court may
dispense with the preliminary inquiry. Even after forming an
opinion as to the offence which appears to have been
committed also, it is not mandatory that a complaint should
be filed as a matter of course. (See Pritish v. State of
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Maharashtra.)
82. Since, the only purpose of enquiry is to find out as to whether
prima facie offence has been made out, therefore, after forming such
a prima facie opinion, it is not necessary to conduct any further
preliminary enquiry into the issue. Therefore, conducting an enquiry
for directing prosecution of witnesses for giving false evidence is not
necessary.
83. Another question for consideration is that whether a direction
for prosecution of witnesses for giving false evidence can be given
without affording an opportunity of hearing or not?
84. The question is no more res integra.
85. The Supreme Court in the case of Pritish (Supra) has held as
under :
12. Thus, the person against whom the complaint is made
has a legal right to be heard whether he should be tried for
the offence or not, but such a legal right is envisaged only
when the Magistrate calls the accused to appear before him.
The person concerned has then the right to participate in the
pre-trial inquiry envisaged in Section 239 of the Code. It is
open to him to satisfy the Magistrate that the allegations
against him are groundless and that he is entitled to be
discharged.
13. The scheme delineated above would clearly show that
there is no statutory requirement to afford an opportunity of
hearing to the persons against whom that court might file a
complaint before the Magistrate for initiating prosecution
proceedings. Learned counsel for the appellant contended
that even if there is no specific statutory provision for
affording such an opportunity during the preliminary
inquiry stage, the fact that an appeal is provided in Section
341 of the Code, to any person aggrieved by the order, is
indicative of his right to participate in such preliminary
inquiry.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
14. Section 341 of the Code confers a power on the party on
whose application the court has decided or not decided to
make a complaint, as well as the party against whom it is
decided to make such complaint, to file an appeal to the
court to which the former court is subordinate. But the mere
fact that such an appeal is provided, it is not a premise for
concluding that the court is under a legal obligation to
afford an opportunity (to the persons against whom the
complaint would be made) to be heard prior to making the
complaint. There are other provisions in the Code for
reaching conclusions whether a person should be arrayed as
accused in criminal proceedings or not, but in most of those
proceedings there is no legal obligation cast on the court or
the authorities concerned, to afford an opportunity of
hearing to the would-be accused. In any event the appellant
has already availed of the opportunity of the provisions of
Section 341 of the Code by filing the appeal before the High
Court as stated earlier.
15. Once the prosecution proceedings commence the person
against whom the accusation is made has a legal right to be
heard. Such a legal protection is incorporated in the scheme
of the Code. Principles of natural justice would not be
hampered by not hearing the person concerned at the stage
of deciding whether such person should be proceeded
against or not.
16. Be it noted that the court at the stage envisaged in
Section 340 of the Code is not deciding the guilt or
innocence of the party against whom proceedings are to be
taken before the Magistrate. At that stage the court only
considers whether it is expedient in the interest of justice
that an inquiry should be made into any offence affecting
administration of justice. In M.S. Sheriff v. State of Madras
a Constitution Bench of this Court cautioned that no
expression on the guilt or innocence of the persons should
be made by the court while passing an order under Section
340 of the Code. An exercise of the court at that stage is not
for finding whether any offence was committed or who
committed the same. The scope is confined to see whether
the court could then decide on the materials available that
the matter requires inquiry by a criminal court and that it is
expedient in the interest of justice to have it inquired into.
17. Learned Senior Counsel cited the decision of a Single
Judge of the High Court of Andhra Pradesh in
Nimmakayala Audi Narrayanamma v. State of A.P. in which
the learned Judge observed that it is just and proper that the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
court issues a show-cause notice to the would-be accused as
to why they should not be prosecuted. This was said while
interpreting the scope of Section 476 of the old Code of
Criminal Procedure (which corresponds with Section 340 of
the present Code). The following is the main reasoning of
the learned Single Judge: (AIR p. 121)
"The proceedings under Section 476 Criminal Procedure
Code being judicial and criminal in nature, the
interpretation that should be placed in construing the
section should be just, fair, proper and equitable and must
be in accordance with the principles of natural justice. By
adopting such interpretation and procedure, the aggrieved
party would be afforded with an adequate opportunity to
show and satisfy the court that it was not in the interests of
justice, to launch the prosecution and thereby avoid further
proceeding. That apart, the appellate court also would be in
a position to appreciate the reasons assigned in each case
and would have the advantage of coming to its own
conclusion without any difficulty about the justification or
otherwise of launching the prosecution in a particular case.
When once the prosecution had been launched, the accused
will not be having an opportunity thereafter to raise the
question of expediency in the interests of justice to launch
the very prosecution itself. The case thereafter will have to
be gone into on the merits."
18. We are unable to agree with the said view of the learned
Single Judge as the same was taken under the impression
that a decision to order inquiry into the offence itself would
prima facie amount to holding him, if not guilty, very near
to a finding of his guilt. We have pointed out earlier that the
purpose of conducting preliminary inquiry is not for that
purpose at all. The would-be accused is not necessary for
the court to decide the question of expediency in the interest
of justice that an inquiry should be held. We have come
across decisions of some other High Courts which held the
view that the persons against whom proceedings were
instituted have no such right to participate in the
preliminary inquiry (vide M. Muthuswamy v. Special Police
Establishment).
86. Thus, it is held that direction for prosecution can be given for
giving false evidence, even without giving them an opportunity of
hearing.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
87. Accordingly, the Trial Court is directed to take immediate
steps for prosecution of Govind Singh (P.W.1), Vijay Singh
(P.W.2), Bablu Yadav (P.W.3), Charan Lal Uike (P.W.10) and
Dilip Singh Yadav (P.W.11) for giving false evidence before the
Court.
88. The next question for consideration is that whether the
appellants Jagdish, Harkanth and Harnam Singh are entitled for
compensation for violation of their fundamental right guaranteed
under Article 21 of the Constitution of India or not?
89. The Supreme Court in the case of Ankush Maruti Shinde Vs.
State of Maharashtra reported in (2019) 15 SCC 470 has held as
under :
10. It has to be uppermost kept in mind that impartial and
truthful investigation is imperative. It is judiciously
acknowledged that fair trial includes fair investigation as
envisaged by Articles 20 and 21 of the Constitution of
India. The role of the police is to be one for protection of
life, liberty and property of citizens, that investigation of
offences being one of its foremost duties. That the aim of
investigation is ultimately to search for truth and to bring
the offender to book.
10.1. Apart from ensuring that the offences do not go
unpunished, it is the duty of the prosecution to ensure
fairness in the proceedings and also to ensure that all
relevant facts and circumstances are brought to the notice of
the court for just determination of the truth so that due
justice prevails. It is the responsibility of the investigating
agency to ensure that every investigation is fair and does
not erode the freedom of an individual, except in
accordance with law. One of the established facets of a just,
fair and transparent investigation is the right of an accused
to ask for all such documents that he may be entitled to
under the scheme contemplated by CrPC.
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
10.2. Nothing is allowed by the law which is contrary to the
truth. In Indian criminal jurisprudence, the accused is
placed in a somewhat advantageous position than under
different jurisprudences of some of the countries in the
world. The criminal justice administration system in India
places human rights and dignity for human rights at a much
higher pedestal and the accused is presumed to be innocent
till proven guilty. The alleged accused is entitled to fair and
true investigation and fair trial and the prosecution is
expected to play a balanced role in the trial of a crime. The
investigation should be judicious, fair, transparent and
expeditious to ensure compliance with the basic rule of law.
These are the fundamental canons of our criminal
jurisprudence and they are quite in conformity with the
constitutional mandate contained in Articles 20 and 21 of
the Constitution of India.
* * * *
10.4. Even in a case where the Public Prosecutor did not
examine the witnesses who might have supported the
accused, this Court in Darya Singh v. State of Punjab has
observed that the prosecution must act fairly and honestly
and must never adopt the device of keeping back from the
court only because the evidence is likely to go against the
prosecution case. It is further observed that it is the duty of
the prosecution to assist the court in reaching to a proper
conclusion in regard to the case which is brought before it
for trial. It is further observed that it is no doubt open to the
prosecutor not to examine witnesses who, in his opinion,
have not witnessed the incident, but, normally he ought to
have examined all the eyewitnesses in support of his case. It
is further observed that it may be that if a large number of
persons have witnessed the incident, it would be open to the
prosecutor to make a selection of those witnesses, but the
selection must be made fairly and honestly and not with a
view to suppress inconvenient witnesses from the witness
box. It is further observed that if at the trial it is shown that
the persons who had witnessed the incident have been
deliberately kept back, the court may draw an inference
against the accused (sic prosecution) and may, in a proper
case, record the failure of the prosecution to examine the
said witnesses as constituting a serious infirmity in the
proof of the prosecution case.
* * * *
10.6. The prosecution/investigating agency is expected to
act in an honest and fair manner without hiding anything
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
from the accused as well as the courts, which may go
against the prosecution. Their ultimate aim should not be to
get conviction by hook or crook.
90. Article 21 of the Constitution of India reads as under :
21. Protection of life and personal liberty.--No person
shall be deprived of his life or personal liberty except
according to procedure established by law.
91. In the case of Ankush Maruti Shinde (Supra) it has also been
held as under :
12. .........Therefore, there is a serious lapse on the part of
the investigating agency, which has affected the fair
investigation and fair trial, and therefore, we are of the
opinion that the same is violative of fundamental rights of
the accused guaranteed under Articles 20 and 21 of the
Constitution of India.
92. Thus, it is held that the Fundamental Rights of the appellants
namely Jagdish, Harnam Singh and Harkanth have been deliberately
violated by the prosecution with oblique intentions, as the appellant
Harnam Singh and the prosecution witnesses Govind Singh (P.W.1)
and Aafaq Ahmed Siddique (P.W.4) are the employees of same
department, and a suggestion was also given to Govind Singh (P.W.1)
that there is a dispute regarding non-payment of salary to Harnam
Singh, therefore, a false case has been concocted.
93. Thus, it is clear that the appellants Jagdish, Harkanth and
Harnam Singh are the victims of false and malicious prosecution as a
result the appellants Harkanth and Harnam Singh are in jail for a
period of approximately 12 years and the appellant Jagdish has also
spent 6 months in jail. The appellants have also suffered the agony of
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
criminal trial as well as loss of their social reputation.
94. In case of violation of Fundamental Rights, the victim can be
compensated in monetary form. The Supreme Court in the case of
Gang-Rape Ordered by Village Kangaroo Court in W.B., In re,
reported in (2014) 4 SCC 786 has held as under :
19. No compensation can be adequate nor can it be of any
respite for the victim but as the State has failed in
protecting such serious violation of a victim's fundamental
right, the State is duty-bound to provide compensation,
which may help in the victim's rehabilitation. The
humiliation or the reputation that is snuffed out cannot be
recompensed but then monetary compensation will at least
provide some solace.
95. The Supreme Court in the case of Rudul Sah v. State of
Bihar, reported in (1983) 4 SCC 141 while exercising power under
Article 32 of the Constitution of India has held as under :
9. It is true that Article 32 cannot be used as a substitute for
the enforcement of rights and obligations which can be
enforced efficaciously through the ordinary processes of
courts, civil and criminal. A money claim has therefore to
be agitated in and adjudicated upon in a suit instituted in a
Court of lowest grade competent to try it. But the important
question for our consideration is whether in the exercise of
its jurisdiction under Article 32, this Court can pass an
order for the payment of money if such an order is in the
nature of compensation consequential upon the deprivation
of a fundamental right. The instant case is illustrative of
such cases. The petitioner was detained illegally in the
prison for over 14 years after his acquittal in a full-dressed
trial. He filed a habeas corpus petition in this Court for his
release from illegal detention. He obtained that relief, our
finding being that his detention in the prison after his
acquittal was wholly unjustified. He contends that he is
entitled to be compensated for his illegal detention and that
we ought to pass an appropriate order for the payment of
compensation in this habeas corpus petition itself.
10. We cannot resist this argument. We see no effective
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
answer to it save the stale and sterile objection that the
petitioner may, if so advised, file a suit to recover damages
from the State Government. Happily, the State's counsel has
not raised that objection. The petitioner could have been
relegated to the ordinary remedy of a suit if his claim to
compensation was factually controversial, in the sense that
a civil court may or may not have upheld his claim. But we
have no doubt that if the petitioner files a suit to recover
damages for his illegal detention, a decree for damages
would have to be passed in that suit, though it is not
possible to predicate, in the absence of evidence, the precise
amount which would be decreed in his favour. In these
circumstances, the refusal of this Court to pass an order of
compensation in favour of the petitioner will be doing mere
lip-service to his fundamental right to liberty which the
State Government has so grossly violated. Article 21 which
guarantees the right to life and liberty will be denuded of its
significant content if the power of this Court were limited
to passing orders of release from illegal detention. One of
the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the
mandate of Article 21 secured, is to mulct its violators in
the payment of monetary compensation. Administrative
sclerosis leading to flagrant infringementsof fundamental
rights cannot be corrected by any other method open to the
judiciary to adopt. The right to compensation is some
palliative for the unlawful acts of instrumentalities which
act in the name of public interest and which present for
their protection the powers of the State as a shield. If
civilisation is not to perish in this country as it has perished
in some others too well known to suffer mention, it is
necessary to educate ourselves into accepting that, respect
for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage
done by its officers to the petitioner's rights. It may have
recourse against those officers.
96. The Supreme Court in the case of D.K. Basu Vs. State of W.B.
reported in (1997) 1 SCC 416 has held as under :
10. "Torture" has not been defined in the Constitution or in
other penal laws. "Torture" of a human being by another
human being is essentially an instrument to impose the will
of the "strong" over the "weak" by suffering. The word
torture today has become synonymous with the darker side
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
of human civilisation.
"Torture is a wound in the soul so painful that
sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is
anguish squeezing in your chest, cold as ice and heavy
as a stone, paralyzing as sleep and dark as the abyss.
Torture is despair and fear and rage and hate. It is a
desire to kill and destroy including yourself."
-- Adriana P. Bartow
11. No violation of any one of the human rights has been
the subject of so many Conventions and Declarations as
"torture" -- all aiming at total banning of it in all forms,
but in spite of the commitments made to eliminate torture,
the fact remains that torture is more widespread now than
ever before. "Custodial torture" is a naked violation of
human dignity and degradation which destroys, to a very
large extent, the individual personality. It is a calculated
assault on human dignity and whenever human dignity is
wounded, civilisation takes a step backward -- flag of
humanity must on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not
only infliction of body pain but the mental agony which a
person undergoes within the four walls of police station or
lock-up. Whether it is physical assault or rape in police
custody, the extent of trauma, a person experiences is
beyond the purview of law.
13. "Custodial violence" and abuse of police power is not
only peculiar to this country, but it is widespread. It has
been the concern of international community because the
problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948, which
marked the emergence of a worldwide trend of protection
and guarantee of certain basic human rights, stipulates in
Article 5 that: "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment."
Despite the pious declaration the crime continues unabated,
though every civilised nation shows its concern and takes
steps for its eradication.
* * * *
23. In Nilabati Behera v. State of Orissa (to which Anand, J.
was a party) this Court pointed out that prisoners and
detenus are not denuded of their fundamental rights under
Article 21 and it is only such restrictions as are permitted by
law, which can be imposed on the enjoyment of the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
fundamental rights of the arrestees and detenus. It was
observed: (SCC p. 767, para 31)
"It is axiomatic that convicts, prisoners or undertrials
are not denuded of their fundamental rights under
Article 21 and it is only such restrictions, as are
permitted by law, which can be imposed on the
enjoyment of the fundamental right by such persons. It
is an obligation of the State to ensure that there is no
infringement of the indefeasible rights of a citizen to
life, except in accordance with law, while the citizen is
in its custody. The precious right guaranteed by Article
21 of the Constitution of India cannot be denied to
convicts, undertrials or other prisoners in custody,
except according to procedure established by law.
There is a great responsibility on the police or prison
authorities to ensure that the citizen in its custody is
not deprived of his right to life. His liberty is in the
very nature of things circumscribed by the very fact of
his confinement and therefore his interest in the
limited liberty left to him is rather precious. The duty
of care on the part of the State is strict and admits of
no exceptions. The wrongdoer is accountable and the
State is responsible if the person in custody of the
police is deprived of his life except according to the
procedure established by law."
* * * *
40. Ubi jus, ibi remedium.--There is no wrong without a
remedy. The law wills that in every case where a man is
wronged and endamaged he must have a remedy. A mere
declaration of invalidity of an action or finding of custodial
violence or death in lock-up, does not by itself provide any
meaningful remedy to a person whose fundamental right to
life has been infringed. Much more needs to be done.
41. Some punitive provisions are contained in the Penal
Code, 1860 which seek to punish violation of right to life.
Section 220 provides for punishment to an officer or
authority who detains or keeps a person in confinement
with a corrupt or malicious motive. Sections 330 and 331
provide for punishment of those who inflict injury or
grievous hurt on a person to extort confession or
information in regard to commission of an offence.
Illustrations (a) and (b) to Section 330 make a police officer
guilty of torturing a person in order to induce him to
confess the commission of a crime or to induce him to point
out places where stolen property is deposited. Section 330,
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
therefore, directly makes torture during interrogation and
investigation punishable under the Penal Code, 1860. These
statutory provisions are, however, inadequate to repair the
wrong done to the citizen. Prosecution of the offender is an
obligation of the State in case of every crime but the victim
of crime needs to be compensated monetarily also. The
Court, where the infringement of the fundamental right is
established, therefore, cannot stop by giving a mere
declaration. It must proceed further and give compensatory
relief, not by way of damages as in a civil action but by way
of compensation under the public law jurisdiction for the
wrong done, due to breach of public duty by the State of not
protecting the fundamental right to life of the citizen. To
repair the wrong done and give judicial redress for legal
injury is a compulsion of judicial conscience.
42. Article 9(5) of the International Covenant on Civil and
Political Rights, 1966 (ICCPR) provides that "anyone who
has been the victim of unlawful arrest or detention shall
have enforceable right to compensation". Of course, the
Government of India at the time of its ratification (of
ICCPR) in 1979 and made a specific reservation to the
effect that the Indian legal system does not recognise a right
to compensation for victims of unlawful arrest or detention
and thus did not become a party to the Covenant. That
reservation, however, has now lost its relevance in view of
the law laid down by this Court in a number of cases
awarding compensation for the infringement of the
fundamental right to life of a citizen. (See with advantage
Rudul Sah v. State of Bihar; Sebastian M. Hongray v.
Union of India; Bhim Singh v. State of J&K; Saheli, A
Women's Resources Centre v. Commr. of Police.) There is
indeed no express provision in the Constitution of India for
grant of compensation for violation of a fundamental right
to life, nonetheless, this Court has judicially evolved a right
to compensation in cases of established unconstitutional
deprivation of personal liberty or life. (See Nilabati Behera
v. State)
43. Till about two decades ago the liability of the
Government for tortious acts of its public servants was
generally limited and the person affected could enforce his
right in tort by filing a civil suit and there again the defence
of sovereign immunity was allowed to have its play. For the
violation of the fundamental right to life or the basic human
rights, however, this Court has taken the view that the
defence of sovereign immunity is not available to the State
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
for the tortious acts of the public servants and for the
established violation of the rights guaranteed by Article 21
of the Constitution of India. In Nilabati Behera v. State the
decision of this Court in Kasturilal Ralia Ram Jain v. State
of U.P. wherein the plea of sovereign immunity had been
upheld in a case of vicarious liability of the State for the
tort committed by its employees was explained thus: (SCC
p. 761, para 14)
"In this context, it is sufficient to say that the decision
of this Court in Kasturilal upholding the State's plea
of sovereign immunity for tortious acts of its servants
is confined to the sphere of liability in tort, which is
distinct from the State's liability for contravention of
fundamental rights to which the doctrine of sovereign
immunity has no application in the constitutional
scheme, and is no defence to the constitutional remedy
under Articles 32 and 226 of the Constitution which
enables award of compensation for contravention of
fundamental rights, when the only practicable mode of
enforcement of the fundamental rights can be the
award of compensation. The decisions of this Court in
Rudul Sah and others in that line relate to award of
compensation for contravention of fundamental rights,
in the constitutional remedy under Articles 32 and 226
of the Constitution. On the other hand, Kasturilal11
related to the value of goods seized and not returned to
the owner due to the fault of government servants, the
claim being of damages for the tort of conversion
under the ordinary process, and not a claim for
compensation for violation of fundamental rights.
Kasturilal is, therefore, inapplicable in this context
and distinguishable."
44. The claim in public law for compensation for
unconstitutional deprivation of fundamental right to life and
liberty, the protection of which is guaranteed under the
Constitution, is a claim based on strict liability and is in
addition to the claim available in private law for damages
for tortious acts of the public servants. Public law
proceedings serve a different purpose than the private law
proceedings. Award of compensation for established
infringement of the indefeasible rights guaranteed under
Article 21 of the Constitution is a remedy available in
public law since the purpose of public law is not only to
civilise public power but also to assure the citizens that they
live under a legal system wherein their rights and interests
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
shall be protected and preserved. Grant of compensation in
proceedings under Article 32 or Article 226 of the
Constitution of India for the established violation of the
fundamental rights guaranteed under Article 21, is an
exercise of the courts under the public law jurisdiction for
penalising the wrongdoer and fixing the liability for the
public wrong on the State which failed in the discharge of
its public duty to protect the fundamental rights of the
citizen.
45. The old doctrine of only relegating the aggrieved to the
remedies available in civil law limits the role of the courts
too much, as the protector and custodian of the indefeasible
rights of the citizens. The courts have the obligation to
satisfy the social aspirations of the citizens because the
courts and the law are for the people and expected to
respond to their aspirations. A court of law cannot close its
consciousness and aliveness to stark realities. Mere
punishment of the offender cannot give much solace to the
family of the victim -- civil action for damages is a long
drawn and a cumbersome judicial process. Monetary
compensation for redressal by the court finding the
infringement of the indefeasible right to life of the citizen
is, therefore, useful and at time perhaps the only effective
remedy to apply balm to the wounds of the family members
of the deceased victim, who may have been the breadwinner
of the family.
* * * *
54. Thus, to sum up, it is now a well-accepted proposition in
most of the jurisdictions, that monetary or pecuniary
compensation is an appropriate and indeed an effective and
sometimes perhaps the only suitable remedy for redressal of
the established infringement of the fundamental right to life
of a citizen by the public servants and the State is
vicariously liable for their acts. The claim of the citizen is
based on the principle of strict liability to which the defence
of sovereign immunity is not available and the citizen must
receive the amount of compensation from the State, which
shall have the right to be indemnified by the wrongdoer. In
the assessment of compensation, the emphasis has to be on
the compensatory and not on punitive element. The
objective is to apply balm to the wounds and not to punish
the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation)
must be left to the criminal courts in which the offender is
prosecuted, which the State, in law, is duty bound to do. The
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
award of compensation in the public law jurisdiction is also
without prejudice to any other action like civil suit for
damages which is lawfully available to the victim or the
heirs of the deceased victim with respect to the same matter
for the tortious act committed by the functionaries of the
State. The quantum of compensation will, of course, depend
upon the peculiar facts of each case and no strait-jacket
formula can be evolved in that behalf. The relief to redress
the wrong for the established invasion of the fundamental
rights of the citizen, under the public law jurisdiction is,
thus, in addition to the traditional remedies and not in
derogation of them. The amount of compensation as
awarded by the Court and paid by the State to redress the
wrong done, may in a given case, be adjusted against any
amount which may be awarded to the claimant by way of
damages in a civil suit.
97. The Supreme Court in the case of Hardeep Singh Vs. State of
M.P. reported in (2012) 1 SCC 748 has held as under :
17. Coming, however, to the issue of compensation, we find
that in the light of the findings arrived at by the Division
Bench, the compensation of Rs 70,000 was too small and
did not do justice to the sufferings and humiliation
undergone by the appellant. In the facts and circumstances
of the case, we feel that a sum of Rs 2,00,000 (Rupees two
lakhs) would be an adequate compensation for the appellant
and would meet the ends of justice. We, accordingly, direct
the State of Madhya Pradesh to pay to the appellant the sum
of Rs 2,00,000 (Rupees two lakhs) as compensation. In case
the sum of Rs 70,000 as awarded by the High Court, has
already been paid to the appellant, the State would naturally
pay only the balance amount of Rs 1,30,000 (Rupees one
lakh thirty thousand)
98. The Supreme Court in the case of Inhuman Conditions in
1382 Prisons, In re, reported in (2017) 10 SCC 658 has held as
under :
46. In D.K. Basu v. State of W.B. this Court recognised that
at the time of ratification of the International Covenant on
Civil and Political Rights, 1966 in 1979, the Government of
India made a specific reservation to the effect that the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Indian legal system does not recognise a right to
compensation for victims of unlawful arrest or detention
and only became a party to the covenant, subject to this
reservation. It was noted, however, that the reservation has
lost its relevance in view of the law laid down by this Court
in several cases wherein compensation has been awarded
for the infringement of a fundamental right of a citizen. It
was also noted that while there is no express provision in
the Constitution for grant of compensation, this right has
been judicially evolved in cases of established
unconstitutional deprivation of personal liberty or life..........
99. The Supreme Court in the case of Mehmood Nayyar Azam v.
State of Chhattisgarh, reported in (2012) 8 SCC 1 has held as
under :
19. We have referred to the aforesaid paragraphs of D.K.
Basu case to highlight that this Court has emphasised on
the concept of mental agony when a person is confined
within the four walls of police station or lock-up. Mental
agony stands in contradistinction to infliction of physical
pain. In the said case, the two-Judge Bench referred to
Article 5 of the Universal Declaration of Human Rights,
1948 which provides that: "No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment." Thereafter, the Bench adverted to Article 21
and proceeded to state that the expression "life or personal
liberty" has been held to include the right to live with
human dignity and thus, it would also include within itself a
guarantee against torture and assault by the State or its
functionaries. Reference was made to Article 20(3) of the
Constitution which postulates that a person accused of an
offence shall not be compelled to be a witness against
himself.
20. It is worthy to note that in D.K. Basu, the concern
shown by this Court in Joginder Kumar v. State of U.P. was
taken note of. In Joginder Kumar case this Court voiced its
concern regarding complaints of violation of human rights
during and after arrest. It is apt to quote a passage from the
same: (Joginder Kumar case, SCC pp. 263-64, paras 8-9)
"8. The horizon of human rights is expanding. At the
same time, the crime rate is also increasing. Of late,
this Court has been receiving complaints about
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
violation of human rights because of indiscriminate
arrests. How are we to strike a balance between the
two?
9. A realistic approach should be made in this
direction. The law of arrest is one of balancing
individual rights, liberties and privileges, on the one
hand, and individual duties, obligations and
responsibilities on the other; of weighing and
balancing the rights, liberties and privileges of the
single individual and those of individuals collectively;
of simply deciding what is wanted and where to put
the weight and the emphasis; of deciding which comes
first -- the criminal or society, the law violator or the
law abider...."
21. After referring to Joginder Kumar, A.S. Anand, J. (as
His Lordship then was), dealing with the various facets of
Article 21 in D.K. Basu case, stated that any form of torture
or cruel, inhuman or degrading treatment would fall within
the ambit of Article 21 of the Constitution, whether it
occurs during investigation, interrogation or otherwise. If
the functionaries of the Government become law-breakers,
it is bound to breed contempt for law and would encourage
lawlessness and every man would have the tendency to
become law unto himself thereby leading to anarchy. No
civilised nation can permit that to happen, for a citizen does
not shed off his fundamental right to life, the moment a
policeman arrests him. The right to life of a citizen cannot
be put in abeyance on his arrest. The precious right
guaranteed by Article 21 of the Constitution of India cannot
be denied to convicts, undertrials, detenus and other
prisoners in custody, except according to the procedure
established by law by placing such reasonable restrictions
as are permitted by law.
22. At this juncture, it becomes absolutely necessary to
appreciate what is meant by the term "harassment". In P.
Ramanatha Aiyar's Law Lexicon, 2nd Edn., the term
"harass" has been defined thus:
"Harass.--'Injure' and 'injury' are words having
numerous and comprehensive popular meanings, as
well as having a legal import. A line may be drawn
between these words and the word 'harass', excluding
the latter from being comprehended within the word
'injure' or 'injury'. The synonyms of 'harass' are: to
weary, tire, perplex, distress tease, vex, molest, trouble,
disturb. They all have relation to mental annoyance,
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
and a troubling of the spirit."
The term "harassment" in its connotative expanse includes
torment and vexation. The term "torture" also engulfs the
concept of torment. The word "torture" in its denotative
concept includes mental and psychological harassment. The
accused in custody can be put under tremendous
psychological pressure by cruel, inhuman and degrading
treatment.
23. At this juncture, we may refer with profit to a two-Judge
Bench decision in Sunil Gupta v. State of M.P. The said case
pertained to handcuffing where the accused while in judicial
custody were being escorted to court from jail and bound in
fetters. In that context, the Court stated that: (SCC p. 129,
para 23) "the escort party should record reasons for doing
so in writing and intimate the court so that the court,
considering the circumstances [may] either approve or
disapprove the action of the escort party and issue necessary
directions". The Court further observed that when the
petitioners who had staged "dharna" for public cause and
voluntarily submitted themselves for arrest and who had no
tendency to escape, had been subjected to humiliation by
being handcuffed, such act of the escort party is against all
norms of decency and is in utter violation of the principle
underlying Article 21 of the Constitution of India. The said
act was condemned by this Court to be arbitrary and
unreasonably humiliating towards the citizens of this
country with the obvious motive of pleasing "someone".
24. In Bhim Singh v. State of J&K this Court expressed the
view that the police officers should have greatest regard for
personal liberty of citizens as they are the custodians of law
and order and, hence, they should not flout the law by
stooping to bizarre acts of lawlessness. It was observed that
custodians of law and order should not become depredators
of civil liberties, for their duty is to protect and not to
abduct.
25. It needs no special emphasis to state that when an
accused is in custody, his fundamental rights are not
abrogated in toto. His dignity cannot be allowed to be
comatosed. The right to life is enshrined in Article 21 of the
Constitution and a fortiori, it includes the right to live with
human dignity and all that goes along with it. It has been so
stated in Francis Coralie Mullin v. UT of Delhi and D.K.
Basu.
26. In Kharak Singh v. State of U.P. this Court approved the
observations of Field, J. in Munn v. Illinois: (Kharak Singh
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
case, AIR p. 1301, para 15)
"15. ... '... By the term 'life' as here [Article 21] used
something more is meant than mere animal existence.
The inhibition against its deprivation extends to all
those limbs and faculties by which life is enjoyed.' (L
Ed p. 90)"
27. It is apposite to note that inhuman treatment has many a
facet. It fundamentally can cover such acts which have been
inflicted with an intention to cause physical suffering or
severe mental pain. It would also include a treatment that is
inflicted that causes humiliation and compels a person to
act against his will or conscience.
28. In Arvinder Singh Bagga v. State of U.P. it has been
opined that torture is not merely physical but may even
consist of mental and psychological torture calculated to
create fright to submit to the demands of the police.
29. At this stage, it is seemly to refer to the decisions of
some of the authorities relating to a man's reputation which
forms a facet of right to life as engrafted under Article 21 of
the Constitution.
* * * *
36. From the aforesaid discussion, there is no shadow of
doubt that any treatment meted out to an accused while he
is in custody which causes humiliation and mental trauma
corrodes the concept of human dignity. The majesty of law
protects the dignity of a citizen in a society governed by
law. It cannot be forgotten that the welfare State is governed
by the rule of law which has paramountcy. It has been said
by Edward Biggon "the laws of a nation form the most
instructive portion of its history". The Constitution as the
organic law of the land has unfolded itself in a manifold
manner like a living organism in the various decisions of
the court about the rights of a person under Article 21 of the
Constitution of India. When citizenry rights are sometimes
dashed against and pushed back by the members of City
Halls, there has to be a rebound and when the rebound takes
place, Article 21 of the Constitution springs up to action as
a protector. That is why, an investigator of a crime is
required to possess the qualities of patience and
perseverance as has been stated in Nandini Satpathy v. P.L.
Dani.
37. In Delhi Judicial Service Assn. v. State of Gujarat,
while dealing with the role of police, this Court condemned
the excessive use of force by the police and observed as
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
follows: (SCC pp. 454-55, para 39)
"39. The main objective of police is to apprehend
offenders, to investigate crimes and to prosecute them
before the courts and also to prevent commission of
crime and above all to ensure law and order to protect
the citizens' life and property. The law enjoins the
police to be scrupulously fair to the offender and the
Magistracy is to ensure fair investigation and fair trial
to an offender. The purpose and object of Magistracy
and police are complementary to each other. It is
unfortunate that these objectives have remained
unfulfilled even after 40 years of our Constitution.
Aberrations of police officers and police excesses in
dealing with the law and order situation have been
subject of adverse comments from this Court as well
as from other courts but it has failed to have any
corrective effect on it. The police has power to arrest a
person even without obtaining a warrant of arrest from
a court. The amplitude of this power casts an
obligation on the police ... [and it] must bear in mind,
as held by this Court that if a person is arrested for a
crime, his constitutional and fundamental rights must
not be violated."
38. It is imperative to state that it is the sacrosanct duty of
the police authorities to remember that a citizen while in
custody is not denuded of his fundamental right under
Article 21 of the Constitution. The restrictions imposed
have the sanction of law by which his enjoyment of
fundamental right is curtailed but his basic human rights are
not crippled so that the police officers can treat him in an
inhuman manner. On the contrary, they are under obligation
to protect his human rights and prevent all forms of
atrocities. We may hasten to add that a balance has to be
struck and, in this context, we may fruitfully quote a
passage from D.K. Basu: (SCC pp. 434-35, para 33)
"33. There can be no gainsaying that freedom of an
individual must yield to the security of the State. The
right of preventive detention of individuals in the
interest of security of the State in various situations
prescribed under different statutes has been upheld by
the courts. The right to interrogate the detenus, culprits
or arrestees in the interest of the nation, must take
precedence over an individual's right to personal
liberty. ... The action of the State, however, must be
'right, just and fair'. Using any form of torture for
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
extracting any kind of information would neither be
'right nor just nor fair' and, therefore, would be
impermissible, being offensive to Article 21. Such a
crime suspect must be interrogated -- indeed subjected
to sustained and scientific interrogation -- determined
in accordance with the provisions of law. He cannot,
however, be tortured or subjected to third-degree
methods or eliminated with a view to elicit
information, extract confession or derive knowledge
about his accomplices, weapons, etc. His constitutional
right cannot be abridged [except] in the manner
permitted by law, though in the very nature of things
there would be qualitative difference in the method of
interrogation of such a person as compared to an
ordinary criminal."
(emphasis in original)
100. It has been further held in the case of Mehmood Nayyar
Azam (Supra) as under :
45. In Sube Singh v. State of Haryana a three-Judge Bench
of the Apex Court, after referring to its earlier decisions,
has opined as follows: (SCC pp. 198-99, para 38)
"38. It is thus now well settled that the award of
compensation against the State is an appropriate and
effective remedy for redress of an established
infringement of a fundamental right under Article 21,
by a public servant. The quantum of compensation will,
however, depend upon the facts and circumstances of
each case. Award of such compensation (by way of
public law remedy) will not come in the way of the
aggrieved person claiming additional compensation in
a civil court, in the enforcement of the private law
remedy in tort, nor come in the way of the criminal
court ordering compensation under Section 357 of the
Code of Criminal Procedure."
46. At this stage, we may fruitfully refer to the decision in
Hardeep Singh v. State of M.P. The appellant therein was
engaged in running a coaching centre where students were
given tuition to prepare for entrance test for different
professional courses. On certain allegation, he was arrested
and taken to police station where he was handcuffed by the
police without there being any valid reason. A number of
daily newspapers published the appellant's photographs and
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
on seeing his photograph in handcuffs, the appellant's elder
sister was so shocked that she expired. After a long and
delayed trial, the appellant, Hardeep Singh, filed a writ
petition before the High Court of Madhya Pradesh at
Jabalpur that the prosecution purposefully caused delay in
conclusion of the trial causing harm to his dignity and
reputation. The learned Single Judge, who dealt with the
matter, did not find any ground to grant compensation. On
an appeal being preferred, the Division Bench observed that
an expeditious trial ending in acquittal could have restored
the appellant's personal dignity but the State instead of
taking prompt steps to examine the prosecution witnesses
delayed the trial for five long years. The Division Bench
further held that there was no warrant for putting the
handcuffs on the appellant which adversely affected his
dignity. Be it noted, the Division Bench granted
compensation of Rs 70,000.
47. This Court, while dealing with the facet of
compensation, held thus: (Hardeep Singh case, SCC pp.
752-53, para 17)
"17. Coming, however, to the issue of compensation,
we find that in the light of the findings arrived at by
the Division Bench, the compensation of Rs 70,000
was too small and did not do justice to the sufferings
and humiliation undergone by the appellant. In the
facts and circumstances of the case, we feel that a sum
of Rs 2,00,000 (Rupees two lakhs) would be an
adequate compensation for the appellant and would
meet the ends of justice. We, accordingly, direct the
State of Madhya Pradesh to pay to the appellant the
sum of Rs 2,00,000 (Rupees two lakhs) as
compensation. In case the sum of Rs 70,000 as
awarded by the High Court, has already been paid to
the appellant, the State would naturally pay only the
balance amount of Rs 1,30,000 (Rupees one lakh thirty
thousand)."
101. Thus, it is clear that merely because a person was tried for an
offence, does not mean that he is denuded from his fundamental
rights. Further, a person is also entitled to seek compensation for his
malicious prosecution under Civil Law. Life and Liberty of a person
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
is guaranteed under Article 21 of the Constitution of India. Every
acquittal may not attract Article 21 of Constitution of India
warranting payment of compensation under Public Law, but where
the Constitutional Court comes to a conclusion that the accused/
appellant was deliberately and was falsely implicated with oblique
motives,, as a result he has remained in jail for considerable period,
then it can be safely said that the fundamental right of the appellant
were blatantly violated. It has to be kept in mind, that if a
breadwinner of a family is send behind the bars for oblique motive,
then not only the physical, mental and social agony is caused to
sufferer, but his family also suffers physically, mentally, socially as
well as financially. The question of survival may also arise in front of
the family of a victim of a false implication, as the sole breadwinner
is behind the bars. Thus, not only the actual victim of false
implication suffers on account of his detention, but the innocent
family of such a victim also suffers. Furthermore, the question of
rehabilitation may also arise in front of such victim of false
implication. Being the custodian of Fundamental Rights of the
Citizens of this Country, this Court would be failing in its
Constitutional duty to protect the fundamental rights of innocent
person, if the appellants are not compensated in terms of money for
blatant violation of their Fundamental Rights.
102. Now the next question which arises for consideration is that
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
when this Court has already directed for prosecution of witnesses and
investigating officers for giving false evidence before the Court, then
whether this Court should also grant compensation to the appellants
or not?
103. Criminal Prosecution for giving false evidence and direction
for payment of compensation for suffering mental, physical, social
agony are two different facets of life. Giving False Evidence may
invite criminal prosecution, but payment of compensation is for
causing mental, social, physical agony as well as injury to reputation
of a victim of false implication. Further, under the civil law, a person
can always sue for grant of compensation on account of his malicious
prosecution. Therefore, under a given facts and circumstances of a
case, the Constitutional Court can always grant compensation for
violation of Fundamental Rights, apart from directing for prosecution
of witnesses for giving false evidence before the Court.
104. As already pointed out, the appellant Jagdish had remained in
jail for more than 6 months, whereas the appellants Harnam Singh
and Harkanth are in jail for near about 12 years, therefore, the State is
directed to pay compensation of Rs.1 lac to the appellant Jagdish and
Rs.3 lacs each to the appellants Harnam Singh and Harkanth. The
amount of compensation be paid to the appellants within a period 3
months from today, and the Superintendent of Police, Shivpuri, is
directed to submit the receipt of the compensation before the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
Principal Registrar of this Court, within a period of 4 months from
today. In case the compensation amount is not paid within a period
of 3 months from today, then it shall carry the interest @ 7% till the
actual payment is made.
105. The State shall recover the compensation amount from the
salary/pension of Dilip Singh Yadav (P.W.11), Charanlal Uike
(P.W.10) as well as from Govind Singh (P.W.1) Vijay Singh (P.W.2)
and Bablu Yadav (P.W.3) in equal proportion.
106. Before parting with this Judgment, this Court would like to rely
on judgment passed by a Division Bench of this Court in the case of
Pratap Vs. State of M.P. passed on 25-9-2017 in Cr.A.No. 635 of
2006, in which it was observed as under :
1. I am in full agreement with the view taken and the
foundational reasons assigned by my learned brother while
acquitting the appellant.
2. However, I am compelled to write a few words to express
by anguish arising from the disturbing fact of appellant
having to suffer 26 (twenty six) long years of incarceration
before being acquitted.
3. I in my usual nonchalance can very well turn a Nelson's
eye towards this disturbing feature by terming it to be a
systemic defect but my conscience impels me to do
otherwise.
4. It is for the executive and as well the judiciary to take
remedial steps to prevent recurrence of such instances
where rendering of judgment becomes a source for remorse
rather than relief. Appellant Pratap was arrested in April,
1991. Pratap faced a long drawn prosecution, interspersed
by repeated stay of trial which concluded in June 2002 by
convicting him whereafter this appeal took 15 (fifteen) long
years to culminate into this judgment upholding the defence
of innocence.
5. I hope, trust and pray to God that we judges, the
Jagdish Vs. State of M.P. (Cr.A. No.233 of 2010)
Harkanth Vs. State of M.P. (Cr.A. No.239 of 2010)
Harnam Singh Vs. State of M.P. (Cr.A. No.281 of 2010)
executive and legislative functionaries of the State and the
Union get strength and inclination to come out from our
comfort zones and become more sensitive towards the
grievance of the persons like appellant Pratap by making the
necessary changes on the legislative, executive and judicial
front to prevent another Pratap to crop up and shake our
conscience again.
107. The appellant Jagdish is on bail. His bail bonds are hereby
discharged. He is no more required in the present case.
108. The appellants Harkanth and Harnam Singh are in jail. They
be released immediately, if not required in any other case.
109. The Copy of this Judgment be provided to the appellants free
of cost.
110. The Registry is directed to send back the record of the Trial
Court along with copy of this Judgment for necessary information
and compliance.
111. With aforesaid observations, the appeals succeed and are
hereby Allowed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.11.09 18:04:30 +05'30'
