Madhya Pradesh High Court

Virendra @ Lalu Sharma vs The State Of Madhya Pradesh on 5 January, 2022

Author: Gurpal Singh Ahluwalia

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

Gwalior, Dated : 05.01.2022

Shri V.D. Sharma, Counsel for the applicant.

Shri R.K. Awasthi, Counsel for the State.

Shri Dharmendra Rishishwar, Counsel for the complainant.

This application under Section 482 of CrPC has been filed

seeking direction to the police to conduct free and fair investigation

in Crime No.116/2021 registered at Police Station Civil Lines,

District Morena.

The applicant is facing trial in Special Trial No.41/2021 for

offence under Section 306/34 of IPC. Charge-sheet has been filed and

the evidences are being recorded. It appears that the complainant

filed an application under Section 91 of CrPC seeking direction to

the State to file Pendrive containing videography, which was

prepared by father of the deceased. It is made clear that the said

application was filed on 12.08.2021, when even the charges were not

framed. The said application was rejected by the Trial Court by order

dated 14.09.2021 on the ground that the complainant cannot be

permitted to conduct the trial independently. In case, if the

prosecution fails to place some facts/evidence before the Trial Court

then the complainant with the permission of the Court can put

forward his case. Nothing has been placed on record to show that the

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

videography of the spot was prepared. It appears that thereafter,

recording of evidence of the witnesses has begun and some of the

witnesses have also been examined. It is submitted that in fact, it is

the case of honour killing and it has been wrongly given the shape of

suicide. It is further submitted that from the charge-sheet, it is clear

that nothing has been seized from the spot, which could have been

used by the deceased for climbing up to the hook in order to tie the

knot, whereas according to the FIR, door was closed from inside. It is

further submitted that there is no Panchnama to the effect that door

was closed and bolted from inside and even the Naksha Panchnama

is silent on this aspect. Therefore, it is a fit case for giving direction

to the Investigating Agency to investigate the matter properly. It is

further submitted that according to the informant himself, the

deceased was on talking terms with the co-accused Saurav and it

appears that the co-accused Saurav as well as the deceased used to

call them mutually and they used to talk for hours on the phone.

Further, there is nothing on record as to why the girl was sent to the

house of her maternal grand father.

Heard the learned counsel for the applicant.

So far as the right of an accused for seeking a direction to the

police to investigate the matter in a particular manner is concerned,

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

the question is no more res integra.

The Supreme Court in the case of Romila Thapar and others

vs. Union of India and others reported in (2018) 10 SCC 753 has

held as under:-

"24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat, in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus: (SCC p. 100) "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them."

(emphasis supplied)

25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus: (SCC p. 40) "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha, Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary."

(emphasis supplied)

26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed: (SCC pp. 370-71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."

27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide.

28. Be that as it may, it will be useful to advert to the exposition in State of West Bengal and

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

Ors. Vs. Committee for Protection of Democratic Rights, West Bengal and Ors.13 In paragraph 70 of the said decision, the Constitution Bench observed thus:

"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 13 (2010) 3 SCC 571 38 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."

29. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. 39 Rather,

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above) - regarding the manner in which arrest was made. Further, the plea of the petitioners of lack of evidence against the named accused (A16 to A20) has been seriously disputed by the Investigating Agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court. Admittedly, the named accused have already resorted to legal 40 remedies before the jurisdictional Court and the same are pending. If so, they can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when they would be produced before the Court for obtaining remand by the Police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.

30. In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation....................."

This Court in the case of Prabal Dogra vs. Superintendent of

THE HIGH COURT OF MADHYA PRADESH MCRC-64081-2021 Virendra @ Lalu Sharma Vs. The Superintendent of Police and anr.

Police, Gwalior and State of M.P. by order dated 30.11.2017

passed in M.Cr.C.No.10446/2017 has held that the accused has no

say in the matter of investigation.

If there are certain lapses in the investigation, then the

applicant can point out during trial and the Trial Court will look into

the said aspect and if it is found that lapse left by the police goes to

the root of the allegations, then the applicant may get the benefit.

However, when the Trial has already begun and the witnesses are

being examined, then no case is made out directing for further

investigation in the matter.