The police even after submission of the cancellation report can carry out further investigation but formal permission of the Magistrate/trial Court would be necessary.
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY
Crl. Misc. No.M-21042 of 2015 (O&M)
Date of decision : 05.07.2016
ANIL KUMAR……Petitioner(s) Versus STATE OF HARYANA AND OTHERS …Respondent(s)
Present: Mr. Deepender Singh, Advocate for the petitioner; Mr. Deepak Sabharwal, Addl. A.G., Haryana.
ANITA CHAUDHRY, J.
The instant petition has been filed under Section 482 Cr.P.C. read with Article 226 of the Constitution of India for quashing the order dated 09.06.2015, passed by JMIC, Faridabad in FIR No.139 dated 14.05.2015, registered under Sections 376-C, 354-A, 323, 120-B IPC, Police Station Ballabgarh Sadar, District Faridabad.
The facts which are essential to be stated are as follows. Respondent no.3, a convict undergoing sentence in a murder case made a complaint upon which FIR No.139 dated 14.05.2013 was registered under Sections 376, 354-A, 323, 120-B IPC. Allegations of sexual assault by Shahid Khan, Deputy Jail Superintendent in the District Jail, Faridabad were made. The petitioner was the Jail Superintendent in the same jail. The police filed a cancellation report. The victims approached the High Court for intervention. Vide order dated 04.08.2014 the petition was disposed of in view of the status report that was filed by the police. It noted that cancellation report had been submitted and the Court had summoned the complainant. A protest petition was later filed.
The petitioner received a notice regarding a DNA test. He pleads that the allegations of sexual assault were against the Deputy Jail Superintendent and no allegations were levelled against the petitioner and the FIR was registered on the directions of Chief Judicial Magistrate, Faridabad and a cancellation report was submitted, which was verified by the Assistant Commissioner of Police, Ballabgarh and was filed in the Court on 12.08.2013.
The petitioner has further pleaded that respondents no.3 & 4 had approached the High Court seeking transfer of the investigation to the Crime Branch and after seeking a detailed reply and the status, the petition was disposed of with no directions. It was further pleaded that the complainant filed a protest petition, which is pending wherein the petitioner has not been made a party and the case is being adjourned from June, 2014 onwards. It was pleaded that respondents no.3 & 4 had made their respective statements in the protest petition and his name had not appeared even then.
The petitioner further pleaded that meanwhile, a complaint was given to the National Human Right Commission and as per the information available with him still there were no allegations of sexual harassment against the petitioner. It was pleaded that during the pendency of the protest petition, D.G.P. Crimes, Haryana transferred the investigation to the State Crime Branch on 28.07.2014. It was pleaded that no investigation was pending which could be transferred and no permission from the Court was taken for further investigation.
The petitioner received a notice under Section 160 Cr.P.C. from the Inspector of the State Crime Branch on 25.04.2015 to appear in the Court of Judicial Magistrate, Faridabad to give his concurrence for a DNA test. The petitioner filed an application (Annexure P-20) before the Court asking for the status report and sought monitoring of the investigation by the Crime Branch. He also sought copy of the statements made by the complainant and the witnesses. The petitioner claimed that he had raised legal issues and without disposing of the application the Court had straightway called upon him to personally appear in the Court and make a statement as to whether he intended to give his DNA sample.
The petitioner challenges the order dated 09.05.2015 on the ground that once the cancellation report had been submitted and there was no order of further investigation and without taking the permission from the Court, the police could not start further investigations. It was pleaded that he was not named in the FIR or in the statements given in the past nor his name had appeared in the protest petition. It was pleaded that the Investigating Agency without informing the Magistrate who was dealing with the protest petition approached another Court for getting the statement of the victims recorded under Section 164 Cr.P.C. It was urged that the statement had already been given and there was no occasion for her to make another statement two years after the complaint. It was pleaded that Nirmal Bhati, a convict was trying to make a new statement and level allegations against the petitioner. It was pleaded that the medical report dated 16.05.2013 would show that the incident was stated to be of February, 2013 and as per Modi Medical Jurisprudence, sperm cannot be detected after 17 days and nothing could have come out in the vaginal swab. It was pleaded that the Magistrate had not dealt with the important issue and had passed a casual order and no order had been passed on the application filed by him and before taking his DNA, the DNA test on the sperm should first be conducted and the report should be placed before the Court and the signature of the petitioner should be taken on the sample and thereafter, it should be sent to the forensic lab. It was pleaded that no prima facie case was made out nor any directions for his consent for the DNA test could be given and the DNA test could not be ordered. It was pleaded that Nirmal Bhati – respondent no.3 had made similar allegations against the jail officials while lodged in Bhondsi Jail, Gurgaon in 2010 and the allegations were found to be false by the Sessions Judge, Gurgaon.
The Co-ordinate Bench had issued notice and had stayed the operation of the order on 02.07.2015.
The respondent filed their reply pleading that the name of the petitioner had appeared in the statement given by Nirmal Bhati in her statement under Section 164 Cr.P.C. and in the FSL report dated 13.06.2013 received from FSL Madhuban it was found that human semen was found and therefore, DNA test was necessary to verify facts and the plea raised by the petitioner were not sustainable. It was pleaded that the contention that the permission of the Court was not taken was wrong and misconceived and the orders had been passed by the Magistrate who allowed the application and had the trial Court not permitted further investigation, it could have dismissed their application. It was pleaded that no formal permission of the Court was required for further investigation. It was pleaded that the Director General of Police had entrusted the investigation to the State Crime Branch on a complaint received from National Human Right Commission and it was in the interest of justice, equity, good conscious and fair play to get the matter investigated and un-earth the truth. An additional affidavit by the Deputy Inspector General of Police was filed wherein it was pleaded that the FSL report was lying sealed and had not been opened when the cancellation report was submitted and though it had been collected earlier but it was opened later on. It was pleaded that Nirmal Bhati was interrogated by a lady Inspector and her statement under Section 164 Cr.P.C. was recorded and she had levelled allegations of rape against the petitioner. It was pleaded that departmental action has been recommended against the defaulting official who had not properly dealt with the FSL report and further investigations in the FIR were on.
Report of the FSL along with the statement under Section 164 Cr.P.C. were also placed on record. The State counsel had also appended the letter received from Human Right Commission.
The submission on behalf of the petitioner is that a complaint was given to the Sessions Judge, Faridabad who was on a visit to the jail and the prosecutrix had complained of sexual assault and an officer was deputed to the jail for recording the statement, which was later sent to the police. It was urged that in that complaint, the allegations were against the Deputy Jail, Superintendent and not the petitioner and a detailed investigation was carried out and cancellation report (Annexure P-7) was submitted. It was urged that two convicts approached the High Court with a petition (Annexure P-10) praying for entrustment of the investigation to some other agency and in that petition as well no allegations were made against the petitioner and after seeking the status report, order (Annexure P-12) was passed and it was observed that no orders were required to be passed as by then the cancellation report had been submitted and the complainant had been summoned by the Magistrate. It was urged that thereafter, protest petition (Annexure P-13) was filed by Anita wife of Kartar Singh wherein Shahid Khan, Deputy Superintendent and Sangeeta, the lady Warden were arrayed as accused and even then the name of the petitioner did not crop up and the case was being adjourned for the evidence of the complainant. It was urged that meanwhile a complaint was given to the Human Right Commission, which was forwarded to the State and even in that complaint, the name of the petitioner did not appear. It was urged that after two years, the matter was transferred to the Crime Branch and one of the victims was produced before the Magistrate and without taking any permission from the Court, her statement under Section 164 Cr.P.C. was got recorded and thereafter, an application was filed asking the Court for DNA test of the petitioner who was not an accused. It was urged that the sample of the victim was taken on 16.05.2013 and the alleged sexual assault had taken place in February, 2013 and according to Modi Medical Jurisprudence no sperm can be found after 17 days and it is surprising that spermatozoa was found in the vaginal swab. It was urged that the investigation had been transferred without permission and there can be no further investigation without the permission of the Court. It was urged that notice under Section 160 Cr.P.C. was received by him to give his consent regarding the DNA test. It was urged that DNA profile of the sperm detected in the vaginal swab has not been done and question would arise as to whether after a gap of such a long period DNA test can be carried out. It was urged that the effort was to implicate the petitioner and he would have no objection for giving the DNA test provided the DNA profiling of the sperm be first got done and all safety measures put in place. Reliance was placed upon