Ajendra Singh Tank vs The State Of Madhya Pradesh
2022 Latest Caselaw 1816 MP

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         The High Court Of Madhya Pradesh
                            Bench Gwalior
                            *****************
             SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                            MCRC 56730 of 2021

                         Ajendra Singh Tank and Anr.
                                     Vs.
                            State of MP and Anr.

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Shri Prashant Sharma, counsel for the petitioners.
Shri Manish Nayak, Panel Lawyer for the respondent No.1/ State.
Shri DS Tomar, counsel for the respondent No.2.
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Reserved on                                   03/02/2022
Whether approved for reporting               ..../.......
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                                   ORDER

(Passed on 09/02/2022)

Per Rajeev Kumar Shrivastava, J:-

Present petition u/S. 482 of CrPC has been filed seeking quashment

of FIR bearing Crime No.233 of 2020 registered at Police Station Dimni,

District Morena for offences under Sections 302, 341, 294, read with

Section 34 of IPC as well as for quashment of other criminal proceedings

initiated therefrom.

(2) Necessary facts for disposal of present petition in narrow compass

are that on the intimation received from complainant Shivraj

Singh/respondent No.2, a merg was recorded at Police Station alleging

therein that on 12/09/2020 at about 06:30 pm, complainant was standing

near a pond and his brother, namely, Narendra Singh Tomar (deceased)

returned back after taking a lunch and when he reached in front of the

house of one co-accused Deepu Tank, then co-accused Deepu Tank who

was armed with a pistol, petitioner No.2- accused Nagendra Singh Tank

who was armed with a pistol, co-accused Lokendra Tank who was armed

with a mouser, and present petitioner no.1-accused Ajendra Singh Tank

who was armed with a mouser, reached there and surrounded him.

Thereafter, all the accused persons including the petitioners started abusing

him due to previous enmity. When brother of complainant- deceased

Narendra Singh objected to it, then all of them fired gunshots. Co-accused

Deepu Tank caused a gunshot fire on the left side of rib of his brother-

deceased Narendra Singh. Petitioner No.2- accused Nagendra Singh also

caused a gunshot fire on the on the right side of rib of his brother-deceased

Narendra Singh. Co-accused Lokendra Singh and petitioner No.1- accused

Ajendra Singh also fired by their mousers as well as co-accused Upendra

alias Gatua Tank also caused fire by means of pistol. Devendra Tomar and

Vijay Tomar are the witnesses to the incident. On seeing them, all accused

persons including present petitioners fled away from the place of incident.

Thereafter, the brother of complainant Narendra Singh Tomar (deceased)

was sent to the hospital for postmortem. On the basis of merg recorded

under Section 174 of CrPC, aforesaid Crime was registered and matter was

investigated. As per the opinion of doctor, one entry wound and one exit

wound were found over the body of deceased. The cause of death of

deceased Narendra Singh Tomar was due to hamearrohage as a result of

injuries sustained by the deceased on his vital parts caused by means of

firearms and cause of death of the deceased was within 6 to 24 hours of

incident and the mode of death is depend upon the circumstantial evidence.

On the basis of the aforesaid merg intimation, FIR has been registered

against petitioners and co-accused persons, namely, Deepu Tank, Lokendra

Tank and Upendra alias Gatua Tank. During investigation, the statements of

witnesses were recorded and in their statements recorded under Section 161

of CrPC, all the witnesses stated about the active role or participation of

petitioners and other co-accused persons. The police arrested co-accused

Deepu alias Deependra Tank and recovered a pistol from his possession and

and recorded his memorandum under Section 27 of the Evidence Act

wherein, he has stated that he along with co-accused Lokendra, Upendra

and present petitioners have committed murder of deceased. The other co-

accused persons including present petitioners could not be arrested by

police and a farari panchnama was prepared and by declaring the

petitioners as absconders, proceeding under Section 82 CrPC was initiated.

The Superintendent of Police, Morena declared a reward of Rs.10,000/- for

arrest of aforesaid proclaimed offenders vide order dated 17/11/2021.

Police authorities kept the matter pending for further investigation as

absconding petitioners including co-accused could not be arrested and filed

a challan under Section before the Court of JMFC, Ambah, Morena on

15/12/2020. Thereafter, police authorities after taking further investigation

came to the conclusion that accused persons are involved in committing

murder of deceased, therefore, permission of higher authority is required to

file a supplementary challan before the Court of JMFC. Thereafter, case

was committed bearing ST No.696/2021 and arrest warrants were issued

against petitioners and other absconding co-accused.

(3) It is submitted on behalf of the petitioners that petitioners have been

falsely implicated and the higher authority was well-aware of the fact that

the investigation is still pending before SDO(P) and filing of incomplete

Final Report by IO is not permissible in law. Once first Challan was filed

and at that time, investigation was pending, therefore, supplementary

challan which was filed later on, is not permissible in the eyes of law. It is

further submitted that an accused is entitled to a free and fair investigation

which is concomitant to preservation of fundamental right of an accused

under Article 21 of the Constitution in order to maintain law and order

situation as well as peace and tranquility in the society. When serious

allegations are made against the accused, it is for the State to entrust one or

other agency for the purpose of investigating the matter further properly. In

support of his contentions, learned counsel for the petitioners has relied

upon the judgment passed of Hon'ble Supreme Court in the case of Nirmal

Singh Kahlon vs. State of Punjab reported in (2009) 1 SCC 441. It is

further submitted that investigation conducted by police authorities is a

faulty and shaky. The IO has investigated the matter in a most mala fide

manner with oblique motive and has gone to the extent of withholding

important piece of evidence so that Court cannot close its eyes. The IO of

police station has not conducted the investigation in a free and fair manner

and did not consider the defence of petitioners-accused, therefore, the

investigation is clearly ex facie and illegal and sustained in the eyes of law.

Once the report of police authorities is self-conflicting in nature, then Final

Report/Closure Report filed against the petitioners deserves to be

exonerated. Therefore, impugned FIR and other consequential criminal

proceedings arising out of said FIR pending before the Court of JMFC

deserves to be quashed by allowing this petition.

(4) Per contra, the Counsel for the State supported the impugned FIR as

well as other consequential criminal proceedings initiated thereof. It is

submitted that on the instructions of SP, Morena, SDO(P) enquired into the

matter and submitted a report to SP, Morena which reflects the presence of

offenders like the present petitioners on the alleged date of incident as they

have played an active role for committing the murder of the deceased. Even

from the statements of witnesses recorded under Section 161 of CrPC, it is

clear that the petitioners along with other co-accused have committed

murder of deceased by means of firearm so that they are liable to be

prosecuted for said offence. Hence, prayed for dismissal of this petition.

(5) Heard learned counsel for the parties at length and perused

documents available on record.

(6) From bare perusal of record, it is evident that the finding given by

SHO or IO is final with regard to conclusion of investigation and is the

competent and responsible to file Charge Sheet/Challan for commission of

proved offences, as per investigation and Final Report/ Closure Report if

prepared by SHO or IO of concerned Police Station requires permission/

approval of higher authority. Once, case is registered for commission of

cognizable offence, then except filing of Final Report or Closure Report by

following the due procedure, no any other option is remained to the Police

Authorities. Discharge or acquittal of accused is the sole jurisdiction of the

Court and Police is not having the aforesaid jurisdiction. Hence, only

considering the fact that SDO(P) has given a finding that prima facie case

is not made out against the petitioners, has no force under the law. Hence,

no interference is warranted and petition deserves to be dismissed.

(7) In the light of aforesaid discussion and observation, this Court does

not find it to be a fit case for quashing the FIR and other subsequent

criminal proceedings initiated therefrom. Accordingly, this petition fails

and is hereby dismissed.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.02.10 11:22:13 +05'30'