KAPOOR CHAND SAINI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The complainant-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 22.05.2015 passed by the Additional Chief Judicial Magistrate, Hindauncity (District Karauli) in respect of FIR No.179/2014 registered at Police Station Hindauncity whereby the learned Court below dismissed the application under Section 173 (8) Cr.P.C. filed by the petitioner and refused to order further investigation in the case.

(2.) Brief relevant facts for the disposal of this petition are that for an incident of 09.03.2014, on the basis of Parcha-Bayan of the petitioner FIR No.179/2014 came to be registered on 09.03.2014 for offences under Sections 147,148,341,323 and 307 IPC read with Section 149 IPC against four named persons and some other persons and after investigation involvement of as many as six persons was found in the incident. Four persons namely; Shri Sugan Gurjar, Bhoora, Shivaji and Pintu were arrested and charge-sheet was filed against them on 07.06.2014 for offences under Sections 147,148,341,323,324,325,326 and 307 read with Section 149 IPC. Two other persons namely Kanhaiya & Khanna alias Rajveer were also found in the incident for the same offences, but investigation was kept pending against them under Section 173 (8) Cr.P.C. on the ground that they could not be arrested as they are absconding. It is to be noted that investigating agency was empowered to file charge-sheet even against them under Section 299 Cr.P.C. as they were clearly found involved in the incident, but even then without any reasonable cause investigation was kept pending. Some representations were given on behalf of the petitioner to higher police authorities and by letter dated 31.07.2014 direction was issued by the office of Inspector General of Police Bharatpur Range to the concerned SHO to arrest the aforesaid two persons and file compliance report but necessary steps were not taken in this regard. Thereafter, the course of investigation was changed and despite previous conclusion that the above two persons are also involved in the incident, more evidence was collected and on that basis it was found that on the date and time of the said incident they were not present at the place of incident, rather they were under treatment in a private hospital at Mathura (UP) as they sustained some injuries in a road accident and with this finding it was concluded that they were not involved in the incident and with this conclusion closure report under Section 173 (8) Cr.P.C. was filed in the Court below. At this stage, an application was filed by the petitioner with a prayer to order further investigation but the same was dismissed by the Court vide impugned order.

(3.) On consideration of submissions made and the material made available on record and the relevant case law, I am of the view that it would be nothing, but an abuse of process of law if the impugned order as well as closure report against these two persons is allowed to stand as previously after investigation involvement of these persons was also clearly found in the incident and on the basis of that finding the investigating agency was entitled to file charge-sheet against them under Section 299 Cr.P.C. even in their absence, but the investigation was unnecessarily kept pending under Section 173 (8) Cr.P.C. on the pretext that they are absconding. Once on the basis of evidence collected during investigation it was found that these two persons are also involved in the incident, there was no need to keep the investigation pending. More surprisingly, thereafter the course of investigation was totally changed and more evidence was collected showing absence of these persons from the place of incident on the date and time of the incident. Once previously involvement of these two persons was found, investigating agency was not entitled to file closure report on the basis of subsequent evidence as the plea of alibi can be considered by the Court at the conclusion of the trial and not by the investigating agency during the course of investigation. In the facts and circumstances of the case, I am of the further view that it is a fit case in which this Court to prevent the abuse of process of law and otherwise to secure the ends of justice must exercise its inherent powers conferred under Section 482 Cr.P.C. and to pass an appropriate order.