Ashok Kumar @ Ashoki v. State (GNCT of Delhi)

1. By way of the present petition, the petitioner seeks directions thereby quashing the criminal proceedings and charge sheet in case FIR NO. 136/2018, dated 14.04.2018, registered at Police Station - Nabi Karim for the offences punishable under Sections 25/54/59 of the Arms Act and consequent proceedings arising therefrom.

2. The case of petitioner is that he was arrested in afore-noted case on 13.04.2018 and after arresting, the I.O. recorded his first disclosure statement on 13.04.2018 itself. However, in order to falsely implicate the 2019:DHC:6596 petitioner under Arms Act, I.O. recorded his supplementary disclosure statement on 14.04.2018 and in the disclosure statement, allegation of pistol in possession of the petitioner was shown. Accordingly, a raiding party was constituted which was led by the IO SI Mehrab Alam along with other 10 police officials of PS Nabi Karim and a pistol was shown to have been recovered from the house of petitioner. Consequently, present case was registered. Subsequently, another disclosure statement dated 17.04.2018 was recorded by the I.O., wherein the name of the son of the petitioner came on record with the allegation that weapon had been arranged by him (son) and he absconded with the another pistol and cartridges. He moved anticipatory bail application before the Sessions Court as well as this Court, however, he could not get relief from any Courts and therefore, he surrendered himself. During investigation, nothing incriminating i.e. any pistol or live cartridges were recovered from the possession of son of the petitioner, following which the IO moved an application for release and the Metropolitan Magistrate vide its Order dated 06.09.2018, released the son of the petitioner from this case.

3. It is further the case of the petitioner that apart from the two cases including the present one, in another F.I.R. No.140/2018 U/s 3/4 of Delhi Gambling Act was registered to falsely implicate him. The police officials of Police Station Nabi Karim took all the articles and money of the petitioner from his house at the time of raiding and the IO SI Mehrab Alam implicated the petitioner and his family falsely in illegal acts.

4. It is contended that the petitioner is innocent and has nothing to do with the alleged offence, however, the investigation is totally against all the cannons of law, unconstitutional and also against the powers conferred on the Investigating Officer by the Cr.P.C.

5. Learned counsel for petitioner submits that in the present case, complainant is SI Mehrab Alam and investigation was also carried out by him alone and surprisingly he himself was an IO, which is against the natural justice. Moreover, investigation is biased. It is a well settled law that the complainant and IO cannot be the same person but in the present case, this has happened. The petitioner was falsely implicated in the present case and the charge sheet in the present case suffers with defects and petitioner cannot be held guilty for the offences mentioned in the charge sheet.

6. To strengthen his arguments, learned counsel for the petitioner has relied upon the decision of the Hon‟ble Supreme Court in Mohan Lal vs. State of Punjab: AIR 2018 (SC) 3853 wherein it was held by the Apex Court that: “In a criminal prosecution, there is an obligation case on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. The primary question for our consideration in the present appeal is, whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.”

7. On the other hand, learned APP has relied upon the case of Tarun Jit Tejpal vs. The State of Goa and Anr., [Criminal Appeal No. 1246/2019, arising out of SLP (Crl.) No. 1383/2018], decided by the Hon‟ble Supreme Court, whereby it is held that „the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.’

8. He further relied upon the case of Varinder Kumar vs. State of Himachal Pradesh: 2019 SCC OnLine SC 170, whereby, the Hon‟ble Apex Court held as under:

9. In case of Tarun Jit Tejpal (Supra), the Hon‟ble Supreme Court opined that “the decision of this Court (Supreme Court) in case of Mohan Lal (Supra) shall not be applicable to the facts of the case on hand as criminal prosecution has been initiated in the present case mush prior to the decision in the case of Mohan Lal (Supra). Therefore, the appellant herein cannot be discharged on the ground mainly that the Investigating officer and the complaint/ informant are the same and the trial is vitiated, relying upon the decision of this Court in the case of Mohan Lal (Supra).”

10. It is not in dispute that the complainant is the Investigating Officer of the case in hand and there is no material on record that on said date, another Investigating Officer was not available in the Police Station.

11. In case of Tarun Jit Tejpal (Supra), the case was registered for the offences punishable under Sections 354, 354A, 354B, 341, 342, 376(2)(f) and 376 (2)(k) of IPC. In the said case, though informant was the Investigating Officer of the case, however, the case was registered on the complaint of the prosecutrix and in that case, the Investigating Officer will be the formal witness and the conviction or acquittal shall be based upon the statement of the prosecutrix. Whereas, in the present case, statement of IO is sufficient for conviction. Thus, it is against the principles of natural justice and fair trial.

12. In case of Varinder Kumar (Supra), it is observed that “..... the only issue surviving for consideration is with regard to the case of the prosecution being vitiated in view of Mohan Lal v. State of Punjab: (2018) 17 SCC 627 because PW – 10 was the informant as also the Investigating Officer. In this case, this particular ground, not having been raised at any earlier stage, the prosecution never had a chance to contest the same. It had not even been pleaded in the appeal.”

13. Whereas, the present case is registered under the Arms Act and petitioner raised this issue at the initial stage, at the time of passing order on charge. Therefore, both the cases relied upon by the learned Public Prosecutor have no relevance in the facts and circumstances of the present case.

14. In case of Babu Bhai vs. State of Gujarat: 2002 (12) SCC 254 has held as under:- “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 to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth"