Punjab-Haryana High Court
M/S East India Transport Agency vs State Of Haryana And Others on 18 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
123
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-15230-2024
Date of Decision: September 18, 2024
M/S EAST INDIA TRANSPORT AGENCY ....Petitioner(s)
VERSUS
STATE OF HARYANA AND OTHERS ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. S.K. Liberhan, Advocate
for the petitioner.
Mr. Chetan Sharma, DAG, Haryana.
****
SANDEEP MOUDGIL, J.(ORAL)
Learned counsel for the petitioner has initiated the instant
petition invoking the jurisdiction of this Court under Section 482 Cr.P.C. for
setting aside order dated 29.02.2024 whereby the application for seeking
fair, transparent and impartial investigation was dismissed being devoid of
merits.
Learned counsel for the petitioner asserted that the investigating
officer is not in full support of the case of the petitioner wherein he has
repeatedly requested for the examination of the tower locations, mobile
phone, call details and toll plaza receipts revealing the movements of the
vehicle in question i.e. truck bearing registration No.RJ-40GA-1674 wherein
suparis were being transported.
Further the petitioner sought examination qua the GPS tracker
installed in the aforementioned truck and failing to receive the information
has finally been compelled to approach the trial Court vide application dated
Nil (Annexure P-2) which stands dismissed by the trial Court wherein the
same has been assailed before this Court.
Reliance can be placed upon the judgment of the Apex Court
rendered in A.V.Bellarmin vs Mr.V.Santhakumaran Nair (Madras High
Court) wherein it has been held that free and fair investigation is a matter of
right even for the victim. Relevant paras of the said judgment is reproduced as
under:-
'14. Instrumentality of a State and its officials must conform to
the Rule of Law leading to fairness in action. It has been well
established that fairness is a facet of Article 21 of the
Constitution of India. Such a fairness in action is also
mandatorily to be followed in a criminal investigation. A right
to a fair investigation is not only a constitutional right but a
natural right as well. In Sathyavani Ponrani v. Samuel Raj,
2010 (4) CTC 833, while dealing with fair investigation, this
Court has held that the same is mandatory under Articles 14,
21 and 39 of the Constitution of India. The following
paragraphs would be apposite:
66.Free and Fair Investigation and Trial is enshrined
in Article 14, 21 and 39-A of the Constitution of India. It is
the duty of the state to ensure that every citizen of the
country should have the free and fair investigation and
trial. The preamble and the constitution are compulsive
and not facultative, in that free access to the form of justice
is integral to the core right to equality, regarded as a basic
feature of our Constitution.
Therefore such a right is a constitutional right as well as a
fundamental right. Such a right cannot be confined only to the
accused but also to the victim depending upon the facts of the
case. Therefore such a right is not only a constitutional right
but also a human right. Any procedure which comes in a way of
a party in getting a fair trial would in violation of Article 14 of
the Constitution.
67.The Hon'ble Apex Court in ZAHIRA HABIBULLA H.
SHEIKH v. STATE OF GUJARAT [(2004) 4 SCC 158] has
observed as follows:
"36. The principles of rule of law and due process are
closely linked with human rights protection. Such rights
can be protected effectively when a citizen has recourse to
the courts of law. It has to be unmistakably understood that
a trial which is primarily aimed at ascertaining the truth
has to be fair to all concerned. There can be no analytical,
all- comprehensive or exhaustive definition of the concept
of a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the
ultimate object in mind viz. whether something that was
done or said either before or at the trial deprived the
quality of fairness to a degree where a miscarriage of
justice has resulted. It will not be correct to say that it is
only the accused who must be fairly dealt with. That would
be turning a Nelson's eye to the needs of the society at
large and the victims or their family members and
relatives. Each one has an inbuilt right to be dealt with
fairly in a criminal trial. Denial of a fair trial is as much
injustice to the accused as is to the victim and the society.
Fair trial obviously would mean a trial before an impartial
judge, a fair prosecutor and atmosphere of judicial calm.
Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is
being tried is eliminated. If the witnesses get threatened or
are forced to give false evidence that also would not result
in a fair trial. The failure to hear material witnesses is
certainly denial of fair trial."
68.Similarly in TASHI DELEK GAMING SOLUTIONS LTD. v.
STATE OF KARNATAKA [(2006) 1 SCC 442), the Hon'ble
Apex Court has observed as follows: "37. If the agent was to be
prosecuted for violation of the term of the notification, he could
challenge the validity thereof. A fortiori, a quia timet
application would also be maintainable. A person must be held
to have access to justice if his right in any manner whether to
carry on business is infringed or there is a threat to his liberty.
Access to justice is a human right.
38. In Dwarka Prasad Agarwal v. B.D. Agarwal [(2003) 6 SCC
230] this Court opined: (SCC pp.245-46, para 38) "A party
cannot be made to suffer adversely either indirectly or directly
by reason of an order passed by any court of law which is not
binding on him. The very basis upon which a judicial process
can be resorted to is reasonableness and fairness in a trial.
Under our Constitution as also the international treaties and
conventions, the right to get a fair trial is a basic
fundamental/human right. Any procedure which comes in the
way of a party in getting a fair trial would be violative
of Article 14 of the Constitution of India. Right to a fair trial by
an independent and impartial tribunal is part of Article 6(1) of
the European Convention for the Protection of Human Rights
and Fundamental Freedoms, 1950 [see Clark (Procurator
Fiscal, Kirkcaldy) v. Kelly [(2003) 1 All ER 1106(PC)]."
69.In NIRMAL SINGH KAHLON v. STATE OF
PUNJAB [(2009) 1 SCC 441], the Hon'ble Apex Court was
pleased to observe that the right to fair investigation and trial
is applicable to the accused as well as the victim and such a
right to a victim is provided under Article 21 of the
Constitution of India. The observation of the Hon'ble Apex
Court is extracted hereunder:
"28. An accused is entitled to a fair investigation. Fair
investigation and fair trial are concomitant to preservation
of fundamental right of an accused under Article 21 of the
Constitution of India. But the State has a larger obligation
i.e. to maintain law and order, public order and
preservation of peace and harmony in the society. A victim
of a crime, thus, is equally entitled to a fair investigation.
When serious allegations were made against a former
Minister of the State, save and except the cases of political
revenge amounting to malice, it is for the State to entrust
one or the other agency for the purpose of investigating
into the matter. The State for achieving the said object at
any point of time may consider handing over of
investigation to any other agency including a Central
agency which has acquired specialisation in such cases."
15. In Azija Begum v. State of Maharashtra, (2012) 3 Supreme
Court Cases 126, the Apex Court has held as follows:
'13. The issue is akin to ensuring an equal access to justice.
A fair and proper investigation is always conducive to the
ends of justice and for establishing the rule of law and
maintaining proper balance in law and order.?
16. In Subramanian Swamy v. CBI, (2014) 8 Supreme Court
Cases 682, the Apex Court has ruled that any investigation into
crime should be fair and should not be tainted. It has been
further held that Rule of Law is a facet of equality under Article
14 of the Constitution of India.
17. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263,
the Supreme Court has held that the Court is bound to record
any deliberate dereliction of duty, designed defective
investigation, intentional acts of omission and commission.
18. Therefore, fairness in an action leading to upholding rule
of law is a sine qua non of a criminal investigation.'
Learned State counsel contends that the investigation has been
done in a fair manner to speed up the trial wherein it has been found that the
instant case involves chain of persons who are involved in commission of
the offence but could not controvert the fact that the supari/betel worth Rs.75
lakhs is yet to be recovered.
Be that as it may, this Court is of the considered view that a
nexus is to be cracked to unveil the conspiracy involved in the
commissioning of offence wherein after disclosure statement of all accused,
the supari/betel worth Rs.75 lakhs is yet to be recovered, therefore, suffice
for this Court to intervene in the course of the investigation and to exercise
the powers as vested with it under Section 482 Cr.P.C./528 BNSS, 2023.
Hence, the investigating officer is hereby directed to consider the instant
petition and the application (Annexure P-2) filed before the trial Court, on
the representation on behalf of the petitioner and to consider the issues
raised by the petitioner during the course of investigation.
This Court in the light of the aforenoted view of the Apex
Court, is also of the opinion that the petitioner/victim falls under the ambit
of the Article 21 of the Constitution of India, therefore the right of the victim
person also deserves to be protected under the ambit of law. And the access
to justice is a human right which cannot be forgoed.
Petition in the aforesaid terms stands disposed of.
(SANDEEP MOUDGIL)
JUDGE
18.09.2024
Sangeeta
Whether reasoned/speaking: Yes/No
Whether reportable: Yes/No
