Nikki vs State Of Punjab And Anr
2022 Latest Caselaw 1360 P&H

CRM-M-8521-2022                                                  -1-


        IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                                                   CRM-M-8521-2022
                                                   Date of decision: 09.03.2022


Nikki
                                                                         ... Petitioner
                                          Versus
State of Punjab and another
                                                                       ... Respondent

CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ

Present:Mr. Rahil Mahajan, Advocate, for the petitioner.
                              ***
RAJESH BHARDWAJ, J.

Matter has been taken up through video conferencing via Webex

facility in the light of the Pandemic Covid-19 situation and as per instructions.

The petitioner has approached this Court by way of the present

petition under Section 482 Cr.P.C. seeking:

i) Set-aside/Quash the Order dated 4.1.2021 (Annexure P-9) passed by the Learned JMIC (D), Kharar in case FIR No.49 dated 19.5.2020 u/s 363, 366A, 376, 120-B IPC, u/s 3, 4, 17 POCSO Act PS Naya Gaon, SAS Nagar, thereby granting purported 'permission to arrest' to the Respondent Investigating Agency qua the Petitioner who was already languishing in judicial custody since 17.11.2020 in the same case by virtue of Orders dated 17.11.2020 & 18.11.2020 passed by the said Court;

ii) Set-aside/Quash the Order dated 4.1.2021 (Annexure P-11) passed by the Learned JMIC (D), Kharar in case FIR No.49 dated 19.5.2020 u/s 363, 366A, 376, 120-B IPC, u/s 3, 4, 17 POCSO Act PS Naya Gaon, SAS Nagar, vide which, the Petitioner was remanded to Police custody after the expiry of the period of 15 days from the date of his first remand i.e. 17.11.2020, as the same is in the blatant violation of Section 167 Cr.P.C. as well as the settled position of law

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enunciated by the Hon'ble Supreme Court inter-alia in 'Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J. Kulkarni (1992) 3 SCC 141';

iii) Set-aside/Quash the investigations carried out by the respondents including the Supplementary Challan u/s 173 (8) Cr.P.C. dated 4.2.2021 presented qua the Petitioner as a consequence of the blatantly illegal and non-est impugned Order dated 4.1.2021 (Annexure P-13) and all consequential proceedings arising therefrom as the same are completely illegal, non-est, otiose, nugatory and clearly hit by maxims "Debile fundamentum fallit onus", meaning thereby that when the foundation falls, everything falls; and "Sublato fundamento cadit opus"; meaning thereby, in case a foundation is removed, the superstructure falls;

iv) During the pendency of the instant petition, this Hon'ble Court may be pleased to stay the proceedings before the learned Trial Court in case FIR No.49 dated 19.5.2020 u/s 363, 366A, 376, 120-B IPC, u/s 3, 4, 17 POCSO Act PS Naya Gaon, SAS Nagar.

As per the facts of the case, the FIR was lodged by Vinod Kumar

son of Madan Lal. It was alleged that his daughter (victim) was studying in 10th

class and her date of birth is 26.12.2003 and, thus, she was 16 years and 04

months of age at the time of incident. Nikki son of Kailash used to harass his

minor daughter. On 19.05.2020, Nikki had taken away his minor daughter by

inducing and making false promise of marriage. It was further alleged that

Nikki's friend Suresh is also involved in abduction of his minor daughter. A

request was made to take legal action against the culprits. On the

commencement of the investigation, co-accused Suresh was arrested and

challan was presented against him. However, the petitioner could not be

arrested but later on he surrendered on 17.11.2020. On his surrender before the

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Judicial Magistrate, he was sent to the judicial custody on the very same day.

After having spent 48 days in judicial custody, the police asked for his remand

and, thus, on 04.01.2021, learned JMIC (D), Kharar granted the investigating

agency one day remand of the petitioner. Thereafter, the police filed the

supplementary challan under Section 173(8) Cr.P.C. on 04.02.2021.

Learned counsel for the petitioner has contended that the

petitioner has himself surrendered before the learned Judicial Magistrate on

17.11.2020 and he was straightway sent to the judicial custody on the very

same day. He submits that as the police never demanded any remand of the

petitioner, hence, the Court sent him in judicial custody. However, after having

spent 48 days in judicial custody, the investigation agency filed an application

for issuance of production warrants of the petitioner and thereafter sought his

remand. Learned court of JMIC, Kharar granted the remand of one day on

04.01.2021. He submits that in view of the statutory provisions of Section 167

Cr.P.C. and various judicial precedents, the learned Judicial Magistrate could

not have granted the remand of the petitioner after 15 days from the day of

surrender/arrest. The petitioner was directly sent in judicial custody and had

spent 48 days, the investigating agency had no statutory right to seek the

remand of the petitioner as the statutory period of 15 days had already been

elapsed. He has relied upon the decisions of the Hon'ble Supreme Court and

various High Courts in: Central Bureau of Investigation v. Anupam J.

Kulkarni, 1992(2) RCR (Criminal) 147 SC; Budh Singh v. State of Punjab,

2000(9) SCC 266 SC; State of Haryana v. Dinesh Kumar, 2008(1) RCR

(Criminal) 725; Chander Ratra v. State of Punjab (CRR-68-1996, decided

on 13.11.2002) P&H; K.S. Palanichamy v. State (Madras), 2014(10) RCR

(Criminal) 2139; State of Kerala v. Maju and others, CRM-M-2815-2020,

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date of decision 27.7.2021; State of Punjab v. Davinder Pal Singh Bhullar

and others, 2012(1) RCR (Criminal) 126, to buttress his arguments.

Learned counsel for the petitioner further submits that after

having taken his illegal remand, the police filed a supplementary challan under

Section 173(8) Cr.P.C. against him on 04.02.2021. He has submitted that as the

impugned order granting remand dated 04.01.2021 is illegal, hence, all

consequential proceedings arising therefrom deserve to be quashed being non-

est in the eyes of law.

I have heard learned counsel for the petitioner and perused the

record.

It is apposite to mention that the petitioner is not only specifically

named in the FIR but in view of the allegations made therein, he is the main

accused. The co-accused Suresh was already arrested, however, the petitioner

could not be arrested. Admittedly, the petitioner surrendered before the learned

JMIC on 17.11.2020 and was sent to the judicial custody. The precise

grievance of the petitioner is that once he had spent 48 days in judicial

custody, the investigating agency had no legal right to ask for his remand as

the same was beyond the statutory period of 15 days as per the mandate of

Section 167 Cr.P.C. There is no doubt regarding the statutory provisions and

the law settled down by the Hon'ble Supreme Court in various judicial

pronouncements, however, the stage at which the petitioner had agitated the

issue is equally relevant for consideration of his grievance. Once the learned

Judicial Magistrate had entertained the application filed by the investigating

agency for his production warrants and taking his remand, which was evidently

beyond 15 days, the petitioner was required to be vigilant enough for availing

the appropriate remedy at the relevant time only. The remand under dispute

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was granted on 04.01.2021 but the petitioner never disputed the same and kept

sleeping over. Neither he approached the learned Sessions Judge by way of

filing any revision petition nor this Court for redressal of his grievance in time.

However, he approached this Court by way of the present petition after a gap

of more than one year. For, it is always said that ignorance of law is no

defence, the petitioner has already undergone the period of remand of one day

granted by the Judicial Magistrate and, hence, the prayer made in the petition

for quashing of the same has already become infructuous. In the attending facts

and circumstances of the case, no relief qua the prayer made can be granted at

this stage.

Coming to the prayer for quashing of supplementary challan filed

under Section 173(8) Cr.P.C. dated 04.02.2021, learned counsel for the

petitioner has submitted that the same deserves to be quashed as the remand

order was illegal. From the record of the case, it is evident that the petitioner is

the main accused on the basis of the allegations made in the FIR. He has

specifically been named in the FIR and assigned the specific role. However, he

could not be arrested before 17.11.2020 the date when he himself surrendered.

By that time, challan qua the co-accused had already been presented by the

investigating agency. The provisions of Section 173(8) of Cr.P.C. read thus:

"(8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such

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report or reports as they apply in relation to a report forwarded under sub-section (2)."

A reading of the relevant provisions of Section 173(8) would

show that the investigating agency has a statutory independent right for further

investigation of the case. Even if, the remand granted by the Magistrate was

beyond 15 days, the same cannot result in making the investigation non-est in

the eyes of law as contended by the learned counsel for the petitioner. The

judgments relied upon by the learned counsel for the petitioner are

distinguishable. With all humility, there is no dispute regarding the law laid

down by the Hon'ble Supreme Court, however, the same is distinguishable in

the facts and circumstances of the present case.

In view of the above, I do not find any merit in the present

petition and the same is hereby dismissed. However, this should not be

considered as any opinion on the merits of the case or curtailing the right of the

petitioner to agitate the same during his defence before the trial Court.

                                              ( RAJESH BHARDWAJ )
                                                      JUDGE

  09.03.2022
 sharmila
                      Whether speaking/reasoned                 Yes/No
                      Whether reportable                        Yes/No




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