Uttarakhand High Court
Rajendra Joshi vs State Of Uttarakhand And Others on 30 July, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No.944 of 2021
Rajendra Joshi ..........Petitioner
Versus
State of Uttarakhand and others .......Respondents
Present:-
Mr. Shakti Singh, Advocate for the petitioner.
Mr. S.S. Adhikari, Deputy Advocate General with Mr. Balwinder Singh, Brief
Holder for the State.
Mr. Saurav Adhikari, Advocate for respondent no.3.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Instant writ petition under Article 226 of the Constitution of
India, has been preferred for quashing the FIR No.195 of 2021, under
Sections 323 and 376 IPC, Police Station Lalkuan, District Nainital and
direction that the petitioner may not be arrested pursuant to the FIR.
2. The matter was still pending, when the petitioner and the
victim of the case filed a Compounding Application (IA) No.4 of 2021.
3. According to the FIR, which has been lodged by respondent
no.2 on 09.06.2021, at 12:00 in the noon, she was taken for cleaning of
the swimming pool, there, the petitioner along with co-accused raped the
victim. When the victim tried to free herself from them, she was beaten
up.
4. The learned counsel for the petitioner would submit that on
two counts petitioner seeks indulgence of this Court: (1) The victim has
before this Court filed an affidavit that she had named the petitioner as
suggested by a Lucky Joshi. She did not know the petitioner and when
she had self-realization and by intuition, she filed the affidavit and (2)
The investigation has not been fair in this case. It is argued that to get
fair investigation is covered under right to life as defined in the Indian
Constitution.
5. Learned counsel for the petitioner would submit that on the
date of alleged incident itself, the FIR was lodged. But, the scene of
occurrence was neither protected nor did the Investigating Officer take
CCTV footage in his custody. It is submitted that a Lucky Joshi had
some financial disputes with the petitioner, therefore, at the behest of
Lucky Joshi, the petitioner has been falsely roped in this case.
6. Learned counsel for the petitioner would place reliance
upon the judgment of the Hon'ble Supreme Court in the case of
Babubhai vs. State of Gujarat and others, (2010) 12 SCC, 254. Para 32
of it has been referred to, which is as hereunder:-
"32. The investigation into a criminal offence must be free
from objectionable features or infirmities which may legitimately lead
to a grievance on the part of the accused that investigation was unfair
and carried out with an ulterior motive. It is also the duty of the
investigating officer to conduct the investigation avoiding any kind of
mischief and harassment to any of the accused. The investigating
officer should be fair and conscious so as to rule out any possibility of
fabrication of evidence and his impartial conduct must dispel any
suspicion as to its genuineness. The investigating officer "is not
merely to bolster up a prosecution case with such evidence as may
enable the court to record a conviction but to bring out the real
unvarnished truth". (Vide R.P. Kapur v. State of Punjab1, Jamuna
Chaudhary v. State of Bihar2, SCC at p. 780, para 11 and Mahmood
v. State of U.P.3, "
7. On the other hand, learned State counsel would submit that
after investigation, charge-sheet has already been filed in this case
against the petitioner.
1. AIR 1960 SC 866 : 1960 Cri LJ 1239
2. (1974) 3 SCC 774 : 1974 SCC(Cri) 250 : AIR 1974 SC 1822
3. (1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69
8. This is a writ petition under Article 226 of the Constitution
of India seeking quashing of the FIR and direction that the petitioner
may not be arrested pursuant to the FIR. Undoubtedly, fair investigation
and fair trial, both are part of the right to life as enshrined in the
Constitution. In the case of Babubhai (supra), in para 45, it has also been
reiterated, which is as hereunder:-
"45. Not only fair trial but fair investigation is also
part of constitutional rights guaranteed under Articles 20
and 21 of the Constitution of India. Therefore, investigation
must be fair, transparent and judicious as it is the minimum
requirement of rule of law. The investigating agency cannot
be permitted to conduct an investigation in a tainted and
biased manner. Where non-interference of the court would
ultimately result in failure of justice, the court must
interfere. In such a situation, it may be in the interest of
justice that independent agency chosen by the High Court
makes a fresh investigation."
9. It is also a settle principle that the Court should be slow to
make any interference, unless there are causes and cogent reasons to do
so.
10. Interference in the proceedings under Article 226 of the
Constitution of India is much limited, if the perusal of FIR discloses
commission of offence. Perhaps, the Court should be slow to make any
interference and it should be left to the Investigating Officer to unearth
the truth. The merits, veracity, credibility of the FIR may not be tested in
the proceedings under Article 226 of the Constitution of India.
11. FIR in the instant case is categorical that it is the petitioner
also, who raped the victim. Now, if the victim herself wants to destroy
the FIR lodged by her, it is the Investigating Officer to record her
statement and to ascertain the truth, with the help of forensic and other
evidences. The Investigating Officer in such a situation may be in a
position to ascertain as to whether the changed statement of the victim is
coming out freely, voluntarily, without any compulsion, influence or it is
a further act of named accused, who might have won over the witnesses
or the injured or the victim. This Court cannot record any finding on
those aspects.
12. Insofar as, compounding of these offences is concerned, in
a case of allegation of rape like this, compounding may not be permitted.
It would start a very danger trend. A person who would simply rape
someone and tomorrow comes that he has settled the dispute. In this
proceedings, the Court may not record a finding about truthfulness,
voluntariness of any statement given before this Court. It should be left
to the Investigation or the trial, as the case may be.
13. The role of the Investigating Officer has also been
questioned that he has not secured the place of scene of occurrence and
has not taken the CCTV footages. Undoubtedly, these all defences are
open to the petitioner to be taken up either at the stage when he is called
upon to face the trial or/and when the parties are heard at the time of
framing of charge or at any subsequent stage thereto. But, this cannot be
a ground at this stage to quash the FIR. Need not be reiterated that this
is a petition simplicitor for quashing of the FIR and direction that the
petitioner may not be arrested pursuant thereto.
14. In view of what is stated hereinbefore, this Court does not
find any reason to make any interference and the writ petition deserves
to be dismissed.
15. The writ petition is dismissed.
(Ravindra Maithani, J.)
30.07.2021
Sanjay
