Hon'ble Rajeev Singh,J.
(Oral)
1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report registered as Case Crime No. 0501 of 2017, under Sections 363, 366 Indian Penal Code, Police Station Kotwali City, District Hardoi.
2. We have heard learned counsel for the petitioners and learned counsel for the State, Shri S.P. Singh.
We have gone through the contents of the impugned First Information Report.
3. Order dated 20th February, 2019 reads as under.
"1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report registered as Case Crime No. 0501 of 2017, under Sections 363, 366 Indian Penal Code, Police Station Kotwali City, District Hardoi.
2. We have heard learned counsel for the petitioners and learned counsel for the State, Shri S.P. Singh.
We have gone through the contents of the impugned First Information Report.
3. Order dated 22nd September, 2017 notices the gist of the issue raised by the petitioners. The order reads as under:
"Heard learned counsel for the petitioners and Sri U.K. Tiwary, learned Brief Holder for the State respondents.
We have been taken through the allegations contained in the F.I.R. and the material on record.
Learned A.G.A. may file counter affidavit within a month. Petitioners will have two weeks thereafter to file rejoinder affidavit.
Issue notice to the respondent no. 4 returnable within six weeks.
List on the date mentioned in the notice.
Smt. Shivani Verma (petitioner no.1) and Ajay (petitioner no.2) are present before the Court duly identified by their counsel. Smt. Shivani Verma has stated that she has married petitioner no.2 out of her own free will and is living with him happily without any coercion or influence. It is further stated that she is major.
Till the next date of listing or till submission of police report under Section 173 Cr.P.C., whichever is earlier, the arrest of the petitioners namely, Shivani Verma and Ajay, who are wanted in Case Crime No. 0501 of 2017, under Sections 363, 366 IPC, Police Station Kotwali City, District Hardoi shall remain stayed of course subject to the restraint that the petitioners shall fully cooperate with the investigation and shall appear as and when called upon to assist in the investigation.?
4. We have taken judicial notice of the fact that victim of offence is petitioner no. 1. Petitioner no. 1 claims by virtue of this petition before this Court that she and petitioner no. 2 were in love. Petitioner no. 1 left her parental house on 28th July, 2017 of her free will. It has further been asserted by petitioner no. 1/victim/prosecutrix that her correct date of birth is 1st January, 1999. Being above the age of 18 years, she has a right to get married as per her wish. Consequently, petitioner no. 1 got married to petitioner no. 2 on 8th September, 2017. Photographs of marriage have been appended as Annexure 2.
5. In para 12 of the petition, it has been stated that the informant has given wrong age of petitioner no. 1 as 17 years, in the impugned First Information Report.
6. Short counter affidavit has been filed on behalf of the Prosecuting Agency in Court which is taken on record. The affidavit has been filed along with statement of the prosecutrix recorded under Section 164 Cr.P.C.
We have referred to the statement of the prosecutrix/petitioner no. 1 recorded under Section 164 Cr.P.C. in extenso. The petitioner as the prosecutrix has stated that she is High School pass. In the testimonials, her date of birth has been recorded as 10th May, 2001, which is the correct date of birth. Petitioner no. 2, Ajay lives in the neighbourhood. The prosecutrix has been in love with Ajay since the last about 1 and 1/2 year and has had physical relations with him.
It has been stated that on 28th July, 2017, Ajay took her to Haridwar and they lived in Jwalapur in rented premises. They lived in Haridwar for two months as husband and wife. They had physical relations. Thereafter they came to Lucknow on 8th September, 2017 and got married in Arya Samaj Mandir. The prosecutrix requested her father to get her married to Ajay, however her parents did not agree. It is because of this reason that she went with Ajay. It has further been asserted that she got married to Ajay of her free will.
7. Document (Annexure 2) is ossification test report of the prosecutrix/petitioner no. 1. Her age has been found to be above 18 years.
8. Strangely, although the victim in the course of investigation and through the process of this Court has asserted that she had neither been kidnapped nor abducted, however the Prosecuting Agency on the basis of date of birth entered in the transfer certificate has concluded that she was born on 10th May, 2001 and therefore, on the date of incident, was aged 16 years 2 months and 18 days. In such circumstances, it is being concluded in terms of provisions of Juvenile Justice Act that the offence has been committed, de hors the stand of the kidnappee/abducteee.
9. We find that the transfer certificate has not been brought on record by the Investigating Officer. In such circumstances, we direct the Investigating Officer to remain present in Court. The transfer certificate on the basis of which it is being concluded that the victim is a minor be brought on record.
10. We also direct Shri Kul Shekhar Singh, Joint Director Prosecution, Hardoi to remain present in Court and explain as to under what circumstances, provisions of Juvenile Justice Act are being invoked, although age of the prosecutrix is at issue, and not of a juvenile in conflict with law. The Investigating Officer and Joint Director Prosecution, Hardoi shall also demonstrate before this Court as to under what circumstances the law on the issue is being ignored, as declared by this Court repeatedly, the core of the issue being whether the victim has been kidnapped/abducted or not.
11. List on 25.02.2019 at 10.15 a.m.
12. Interim direction to continue till the next date of listing."
4. We have again referred to the contents of affidavit dated 19.03.2018 sworn by the Investigating Officer. From para 7 of the affidavit and Annexure CA 3, we gather that the Investigating Agency has formulated the opinion that the offence has been committed on the basis of opinion of Shri Kul Shekhar Singh, Joint Director Prosecution. It is in such circumstances that vide above extracted order, we directed Shri Kul Shekhar Singh to remain present in Court.
5. In deference to above extracted order, Shri Kul Shekhar Singh, Joint Director Prosecution, Hardoi is present in Court. Shri Kul Shekhar Singh has been confronted with the provisions of Chapter XII of Code of Criminal Procedure; and Regulation 107 Chapter XI of the Police Regulations. Regulation 107 states as under:
"107. An investigating officer is not to regard himself as a mere clerk for the recording of statements. It is his duty to observe and to infer. In every case he must use his own expert observations of the scene of the offence and of the general circumstances to check the evidence of witnesses, and in cases in which the culprits are unknown to determine the direction in which he shall look for them. He must study the methods of local offenders who are known to the police with a view to recognising their handiwork, and he must be on his guard against accepting the suspcisions of witness and complainants when they conflict with obvious inferences from facts. He must remember that it is his duty to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt a evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. Burglary investigations should be conducted in accordance with the special orders on the subject."
(emphasised by us)
6. Confronted with the guidelines provided for investigation, Shri Kul Shekhar Singh does not appear to have any plausible explanation for giving opinion to the effect that the offence has been committed. Evidently Shri Kul Shekhar Singh is taking a technical view of the matter. Substance of the matter is not being considered. Substance of the matter is that the victim has been repeatedly saying that she is married to Ajay and has neither been kidnapped nor abducted. The Joint Director, however is saying that the prosecutrix had been kidnapped/abducted.
The Joint Director is oblivious of the fact that without taking into account the statement of the victim of offence in the course of trial, conviction cannot be recorded.
Shri Kul Shekhar Singh, the Joint Director is further oblivious of the fact that the victim of offence has herself approached this Court with the plea that she has neither been kidnapped nor abducted and, therefore the impugned First Information Report against the accused be quashed.
The Joint Director is oblivious of the fact that such prosecution would destroy the matrimonial life of the victim herself.
We have repeatedly held that cause of substantial justice is required to be taken into account, and not a hyper-technical view of the matter. Mathematical calculation of the age of the victim cannot be a determining factor in these cases. The issue in the case is whether the victim had been kidnapped/abducted or not. Logically the victim is the only affected person and would be the best witness.
7. On perusal of short counter affidavit dated 20.02.2019 filed by Sub-Inspector, Mohd. Quayum, who is the Investigating Officer in Case Crime No. 501/2017 we find that before finalizing the charge-sheet he has taken the opinion of the Joint Director Prosecution, Hardoi. Further, it has also been deposed that the Superintendent of Police, Hardoi after perusing the entire record alongwith the opinion of the Joint Director Prosecution, Hardoi has instructed him to file a counter affidavit before the Court and to submit that the Prosecuting Agency is unable to withdraw the charge-sheet.
8. A large number of cases are coming before us in which the investigating officer has been following the dictum/advice given by public prosecutor/department of prosecution.
Investigation is conducted under Chapter XII Cr.P.C., starting on registration of First Information Report under Section 154 Cr.P.C., and is concluded at the time of filing police report as provided under Section 173 Cr.P.C. None of the provisions contained therein even indicate or suggest that public prosecutor/ attorney of District or the department of prosecution is involved. The investigation is required to be conducted by the investigating officer, under supervision of supervisory senior police functionaries.
9. The scheme of the Criminal Procedure Code is to the effect that the investigation has to be conducted under Chapter XII of Criminal Procedure Code. The role of the prosecutor comes into play only after police report is furnished in the court. In such circumstances, the Public Prosecutor(s)/GovernmentAdvocate(s)/Officer(s) from prosecution department have no role to play in enforcing their advice/decision on the investigating officer. The police report prepared after investigation is subject to scrutiny of only supervisory police functionaries, and none else.
In this regard, we hereby record and hold that the investigating officer is not required to follow the opinion of such Government Advocate/Public Prosecutor. For this view, we are supported by judgement rendered by the Hon'ble Supreme Court of India in R. Sarala v. T.S. Velu & Ors. [AIR 2000 SC 1731]. The following (relevant portion) has been held while referring to earlier judgments rendered by Hon'ble Supreme Court of India:-
"10. After dealing with various aspects of the investigation from Section 154 to Section 168 of the Code, the statute says in the next two sections regarding the subsequent step. Section 169 of the Code enjoins on the officer in charge of the police station concerned to release the accused from custody on executing a bond if it appears to him that "there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate". Section 170 of the Code directs that if upon investigation "it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report".
Section 173(1) casts an obligation for completing the investigation without unnecessary delay and sub-section (2) enjoins on the officer in charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer in charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank.
11. There is no material difference regarding general powers of investigation by the police as between the present Code and the corresponding provisions contained in Chapter XIV of the erstwhile Code of Criminal Procedure, 1898. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] a three-Judge Bench of this Court, after delineating the different steps in investigation as contemplated in the Code, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. The following observations are to be noted in this context:
"The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551."
12. A Public Prosecutor is appointed, as indicated in Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. He is the officer of the court. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court.
14. Following the above, a two-Judge Bench of this Court has stated inAbhinandan Jha v. Dinesh Mishra [AIR 1968 SC 117 : 1968 Cri LJ 97] as follows:
"We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority."
15. In this context we may also point out that the investigating officer, though is subject to supervision by his superiors in rank is, not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. This position which was well delineated by the celebrated Lord Denning, has since been followed by this Court. In R. v.Metropolitan Police Commr. [(1968) 1 All ER 763 : (1968) 2 QB 118 : (1968) 2 WLR 893 (CA)] Lord Denning had said thus:
"I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State.... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."
(emphasised by us)
10. In view of the law laid down by the Hon'ble Supreme Court of India, we hereby direct Superintendent of Police, Hardoi to take note of the law of the land and ensure that investigation is conducted in terms of provisions of Chapter XII Criminal Procedure Code and of Uttar Pradesh Police Regulations, in particular Regulation 107 (Chapter XI), extracted above, by the Investigating Officer under supervision of the supervisory senior police functionaries. The Investigating Officer or the Investigating Agency is not required to accept and follow the opinion given by the Public Prosecutor/Officers from the prosecution department.
11. Be that as it may, Shri S.P. Singh, learned counsel for the State states that Superintendent of Police Hardoi has already cancelled the charge sheet. In further investigation, incriminating evidence has not been found. Consequently, final report has been prepared and the same would be filed within one week.
12. Considering the statement of Shri S.P. Singh, learned counsel for the Prosecution, this petition is disposed of as infructuous.
13. Before parting with the order, we hereby direct that a copy of this order be forwarded to Director General of Police, U.P., Lucknow, Superintendent of Police, Hardoi and Director General Prosecution, who are required to ensure that law as laid down by the Hon'ble Supreme Court of India and vide this judgement is followed. It must be ensured that the Investigating Officer is not influenced by the advice or instructions of any officer in the prosecution department.
Order Date :- 25.2.2019 VKS