Madhya Pradesh High Court
Shashank Maraiya vs The State Of Madhya Pradesh on 6 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 6 th OF JANUARY, 2025
WRIT PETITION No. 41027 of 2024
SHASHANK MARAIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Abhijeet Singh Tomar - Advocate for the petitioner.
Shri Deepak Khot - GA appearing on behalf of State.
ORDER
The instant petition under Article 226 of the Constitution of India is not
preferred against any particular order, but has been preferred seeking directions
for getting the medical examination conducted of complainant Saifali Maraiya by
Medical Board with respect to Crime No.485/2024 registered at Police Station,
Kailaras, District Morena under Sections 296, 115 (2), 351(2) and 3(5) of BNS
against the petitioner.
2. Short facts of the case are that on 13.11.2024 at about 09:38 p.m. the
complainant, Saifali Maraiya, lodged a First Information Report alleging that the
petitioner and other accused persons had abused her and beaten her and her father
and upon medical examination fracture was found on her person and accordingly
the offence was registered under the aforesaid sections.
3. Learned counsel for the petitioner assailing the very fact of sustaining of
fracture by the complainant has argued before this Court that on 13.11.2024, the
petitioner had made a written complainant with the Police Station Kailaras,
Morena of assault made by the complainant party upon him and his family
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members and on the basis of such complaint an FIR vide Crime No.484/2024 was
registered at P.S. Kailaras under Sections 115(2), 118(1), 351(2), 296, and 3(5) of
BNS and it was only after 16 days of the said incident the X-Ray of the
complainant was done and with the connivance of the doctors the report of a minor
fracture was got prepared which had resulted in lodging of offence under Section
118(2) of BNS.
4. It was further argued that the doctor who had conducted the X-Ray
was not a Radiologist, therefore, the very examination of the complainant was
doubtful. It was further submitted that on 09.12.2024 the petitioner even made
complaints to the Collector and Superintendent of Police, Morena and had asked
for medical examination of the complainant by Medical Board, but no heed was
paid to those applications and the complainant was not medically re-examined,
thus, constrained the present petitioner, who has been made an accused in crime
no.485/2024 had preferred the present petition seeking directions for the police
authorities to get the complainant Saifali Maraiya re-examined by Medical Board
to unearth the truth.
5. On the other hand, Shri Deepak Khot, learned Government Advocate
submitted that in light of the decision of the Apex Court in the matter of Romila
Thapar and Ors. vs. Union of India and Ors. reported in 2018 (10) SCC 753, the
accused has no right to be heard or to bring his defense during investigation and it
is only when challan is submitted before the Trial Court that he can agitate and
bring his defense, thus, the very prayer which has been made is mis-conceived
and, therefore, the present petition deserves to be dismissed.
6. After hearing rival contentions and perusing the record, this Court finds
strength in the arguments as advanced by the learned Government Advocate.
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7. In the matter of Romila Thapar and Ors. (supra) the Apex Court 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 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
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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 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
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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, 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 organization 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....................."
8. Admittedly, the present petitioner is an accused in crime registered vide
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Crime No.485/2024. Though it is also an admitted fact that the cross FIR was also
registered against complainant therein at the behest of the present petitioner, but
that could not give any right to the petitioner being an accused to agitate his
defense or reserves a right to be heard during the investigation. The petitioner
would get every chance to bring his defense before the Trial Court at an
appropriate stage.
9. This Court, therefore, doesn't find any reason to direct the police
authorities not to file charge-sheet till the examination of the complainant by the
Medical Board as has been prayed for.
10. The petition being sans merit is hereby dismissed.
(MILIND RAMESH PHADKE)
JUDGE
Chandni
