293 b INTIlE lUGH COURT OF PUNJAB AND HARYANA AT C7 j CrlMisc NoM9909 of2006 Dateofdecisioll I4 2010 JaggaSinghBrar Pctitioncr Vs Slatc01l Iarvanaand others 1 r CORAM1 HONBLE MRSJUSTICE DAYA CHAUDIlARY 0 PRl1lSENl Mr3aldev SinghSr Advocate with 0 MrDipindcr SinghAdvocate for thepelitioncr I 0 Mr11401 Senior DepulyAdvocate Gcncral 14aryana I MrNSShekhawatAdvocate for RakeshKumar 4444 Z C ORDER I The prcsentpetition has been fllcd under Scction 482 CrC 08 byJagga SinghBrar for conducting fair investigationin case FIR No81 QO dated292006 under Sections302130711 2043 IPC and Section 25 of Arms 7 Z Act registcred at Police StationDabwali by CBl or somc othcr agcncy BrieOythc facts0f1he case as mentionedin thc pctition arc that thc brothcr of the pctitioner Chand SinghBrar was thc Presidcnt of 19abwali 1310ckYouth CongressCommittec In the year 1999 Indian National I Dal came into power in State of Haryanaand Shri Oin Parkash Chautala becameChief Minister The fainilymembersof Shri Om Parkash Chautala were havingpoliticalrivalrywith his brotherwho opposed Chautalafamily inthc clcction On comingto power his two sons Ajay Singh AhhcySinghand one Vinod Kumar Arora and other workers of his party Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 294 6 V Crl Misr No Mee79909of2006 121 startedto scttle thcir scores A numberof FIRs werc got at the behest of AbhcySinghChautalaand Vinod Kumar Arora againsthis brothcr ChandSinghBrar His brother was threals to his life and propertyand he scnt many telegrams and to variousStateauthorities but no action was taken Chand SinghBrar was lnurderedon 29006 A coinplaint was madeby the petitioner and lIR 0 No81 dated 294 2 006 was registcred at Police Station Sadar Dabwali 0 I undcrSections302130711 20B IPC and Section 25154159of Arms Act As 0 per filed by thc petitionerhis brother Chand SinghI3rarwas I inurdercd in a deeprooted conspiracy as 34 dayspriorto his murdcr Z AbhcySinghChautala and Vinod Kumar Arora had thrcatened him and m Ct his brothcr Chand SinghBrar It was also statedby thc petitioncr that thc murdcrwas not for money as was found intact includinghis 08 r lnobile cash goldchain etc but it was a murder duc to politicalrivalry S7 undcr a conspiracyhatched at the instanceof AbheySinghChautala and Z Vinod Kumar Arora Thc motive behind the murder was that his brothcr opposcd AbheySinghChautalain Assembly Election of Rori Constitucncy andVinod Kumar Arora was a closc associateofAbheySinghChautala hc prcsentpetitioncr raisedthc plca that no action was beillg takcn by the police in thc matter and the lnain accused has not becn arrcstedand inquirywas also not beingconductedpropcrly Notice ofmotion was issuedon 19122006 Mr3aldev Singh learned senlor counscl for the petitioncr submits that many telegramsand annexed as Annexurcs P 1 to P9 with the petitionl were sent by Chand SinghBrar himsclf 1 Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 295 1 4 CrleMiscNoM49909 of6 131 bcforehis death wherein it was mentioncd that he was facing to his lifc and propertyat the instanceof AbhcySinghChautalaand falsc cases werc againsthim as he opposed htm in thc Asselnbly 1lcctionIt was also mentionedthat he could be murderedbythesepcrsons andin case he is lnurdered thesepcrsonswould be m r Singhfurther arguedthat a number of FlRs werc rcgistered againstthc 0 brotherof thc petitioner at the instanceof AbheySinghChautala Lcarncd C counsel frther submitted thatpolicehad not conductedtlle C5 in a fair and proper manner as themain accused at whose instancc thc I murderwas coinlnitted was not initiallyarrested and cvery cflort was Z bcing made to helpAbheySinghChautala and his associatcs lt was also C incntioned tn lhc affidavit submittedby Mrikas Arora SPSirsa that thc policcwas not ablc to conduct propcrlybecause01 limitcd c6 rcsourccswith thepoliceand he had no objection ifthc ofthe ClO n casc is conductedbythe CBI Mrl3aldev Singhalso placedreliance on thc Z of l Ionble the SuprcmeCourt in Hasanbhai Valibhai Oureshi Ve Stateof Guiarat and others AIR 4 SC 2078 Rubabbuddin Sheikhve State of Guiarat and others 20101 9 RCR 1rimlnall738 PuniabSi Harvana High Court Bar Association Chandiearh v State of Puniaband others 1994 11 RCRCriminall 205 Kashmcri Dcvi v DelhiAdministration and another 1988CrLl 1800 and judgment of thisCourt in Rai Rani v State of Puniab 2000649 R lriminall24 1 RainiVishram Patil v State of Maharashtra and othcrs 2007 51Al3R NOCI707 6MOBI Ram Gopal v State of UP And others 2009 621 AlaJoNOCI230 All in supportofhis contention 1 Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 296 CrleMisc NoM49909 of2006 141 Mr Allor learned counsel for the State submited that llR No8 1 dated292006 was under Sections302130711 2043 IPC andSection 25 of Anns Act and accused Vimal Kuinar Sushil Kumar Satya Narain alias Rajuand Rakesh Kumar wcre arrcstedon 532006 and challan againstthcm was on 1 82006 Accused SatyaNarain 1 r was by thc Court Accused PardeepKumar was arrestcd on 0 5122007and accused Vinod Kumar was arrestcd on 1822008 0 I challan againstthem was put up in thc Court on C5 1 51 22008 Mohammad Shah Alain froin UP and AbheySinghChautala wercalso nained as accusedin the aforesaidFlR and Satcndcr Kumar alias Z Rinku Tiwari and Viswas alias Vasu alias Nepali werc also idcntilicd as n r accuscdby the on thc basisof bcingcompanion I of Mohammad Shah Alam After of thc case againstthein 06 n0 Mohd Shah Alam and Satenderdied Ill cncountcrs by the policc 7 111thc statc of UP Accused Vishwas alias Vasu could not bc traccd out Z Accused AbheySinghChautalajoinedthe on 12 Dcccmbcr Ll 2008 and in the his stateinent was recordcd alongwith statcments of othcr witnessesand he was not found involved MrMor also subinittcdthat Iearncdcounsel for thepetitioner had rclied upona CD but the originalCD was not givendespite written comlnunications MrMor furthcrargucd that thc trial is at the fag cnd and the samc is Iikclylo concludc 1hcrc are total 63 witnessesout of which 31 have bcen cxalnincd and 10 witnesscs have been givenup and one witness has expircd The accusedwho are facingtrial for the last many years would havc to go back lo facc trial again and it would be unfair to them to facc the agony again Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 297 L CriMisc NoMe79909 of2006 151 andtheir rightto specdytrial would be Oustrated Mrhekhawat leamedcounselappearing on behalfofaccuscd RakeshKumar submittedthat accused are facingthc agony of trial since 2006 and if fresh is allowed to be conductedat thisstagc it would be a futile exerciseand the same would not not be in Q theintcrcst of either of the loartiesMrhekhawat also sublnittedthat fair 0 lllVCStlgatiOll was conducted by the policcand no furthcr invcstigation 1S 0 I rcquired l Ie relied upon thejudgmentof the Honblc Suprcmc Coutt Ill C5 DVenkatasubramaniam and others v MKMohan Krishnamachari and another 2009641 R2 6Criininal9318 and of this Court Z In Phoolwati v State lUnion Territorv of chandiearhl and others 2008 619 RC12Criminall 167 and Bharat Inder Sinh Chahal ve State of I Puniab 2007 CR6Criminall427 in supportofhis contcntion 08 00 1 havc heardthe argumentsof learncd counscl for thc partics 7 and havealso the docuinentsavailable on thc fle Z In the present casc FlR was registercd on thc basis of colnplaint madeby the petitioner who 1S none else but real brothcr of thc dcccasedOn thc basis conductedbythepolice as many as five accusednalnely Sat NarayanaliasRaju Viinal Goyal Sushil Kuinar Rakcsh Kumar and PardeepGodara were arrestcd by the policeand chaIlan against Sat NarayanVinod Kuinar Suresh Kumar and Rakcsh Kumar was filed Accused Mohd Shah Alam was declared PC1 Accused Vinod Arora surrenderedon 182008 and PardeepGodara on 24122007 and theyjoinedthe investigationAccused Mohd Shah Alam was not arrestedinspite of efforts made by the police Accused Mohd Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 298 W CrlMisce NoN79909 of2006 161 4 J Shah Alain and Satinder died duringthe pendency of the and accusedVishwas alias Vasu alias Nepalicould not bc traccd out so far lnitiallyAbheySinghChautalajoinedthe on 121 2008and againon 3A2009 10uring the course of a CD was also bythe which was sent to lSl Madhuban and thc m r salllC Was furthcr scnt to C12 l and the was 0 askcd to sendthe originalCD but the originalCD was not givenby the 0 and hc evcn refusedto put hs signatureon the notice sent by C0 thepolicc MrBaldcv SinghlearnedSeniorCounsel for thepctitioncrwas I not able to put forth any Icgalevidence againstAbhcySinghChautala or Z othcr accused for orderingfurther on and he did no1 producc r anyevidcncc in this regardand simplysubinittcd that duc to political I rivalry many cascs were againstthe deceascd AbhcySingh 08 r Chautalawas spccificallymentioned in the complaintbut he was nevcr 7 arrestedby the policeThe conductedby the policewas IlOt Z propcrbccause of politicalinflucnce and other considcrations Inspiteof affording Mr Baldev Singhwas not ablc to show any material flor conductingfrcsh inquiryexccpt mere allegations in the IlR vcn inspiteof repcatcd quenes bythe Court Mr Baldev Singhwas not able to pinoointanythingfrom the statements of witncsscs recordedduringtrial Now the questionfor considerationby this Court is whcther thc dircctions for further investigation can bc issued by this Court at thc stagewhen the trial is at thc fag end and Iikely to conclude 01 tIlC by some agency 1S requircd whcn thc Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 299 L t 1 Crl Misc NolVl9909 of2006 171 4 1 1 hasalreadybeenconductedbythepolice The has filed the presentpetitionwith a praycr for transfer of to some agency as policewas nol thc case properlyagainstAbheySinghChautala Vinod Kurnar Arora PardccpGodara and Mohammad Shah Alam who arc lhc 1 maln accused involvcd in the crilninal conspiracyto commit murdcr of 0 ChandSinghBrar Mohammad Shah Alam who had becn allcgedto bc C close associate of Mukhtar Ansari and a Mafia Don of UP wcre also I 9 allcgcdto be invoived in thc inurder The grievance of thc petitioner 1S I thatAbheySinghChautala was specifically namedin thc FIR as one ofthe Z but no action was taken againsthim by the policeand C siinilarlyno actlon was laken againstVinod Kuinar Arora and Pardecp I Godara as theyWcrenot arrcstedby the policeCVCll Oll dismissal of their otj ball 00 7 As far as accusedShah Alam and Satinderare concerncd they Z died in policccncounters InitiallyAbheySinghChautala did 110tJOlll Qm investigation but subscquently hc joinedthe invcstigation on l 2 2008 Vinod Kumar Arora Pardeep Godara Were arrestedby the policcand they WCrC grantcdbail by the Court and challan was also presented againstboth of thcm As far as case of AbheySingh Chautala 1S concerncd no incriininatingevidcncc was found againsthiin by the policc and therefore no actlotl was taken lnitiallywhen thepetition was filed in the ycar 2006 no document was pJacedOll record with the petitionexccpt thc and telegramssent by the deccascd but CrMisclllo61844 M of2009 was flled after a gap ofabout three ycars and Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 300 L CrleMisc NolVl79909 of2006 181 variousdoculnentswere placed on record includinglhe replyfiled byVikas Arora 01Police Sirsa Thc emphasis of thc pctitioncr lll themain pctltlon as well as in the CrMisc is that AbheySinghChautala hasspccilicallybecn lnentioned in the FIR but policehas not takcn any actlon against hiin As pcr rcplysubmiHedby the official it 1 0 hasbccn lncntioncd that no cvidence hasbeen found in thc to 0 conncct AbheySinghChautala with the allegedconspiracy to commit 0 murdcr of Chand SinghBrar I 9 Now thc sole questionfor consideration by this Court is I whcther in this case can be orderedat this stagewhen thc Z trial is at the fagend of its conclusion There is nothing on rccord to show Q that has not becn fairlyconductedbythe policcor thc accuscd I who werc found innocent in thc investigation were involvcd in the murdcr 08 Learncd counscl for thc petitionerhas not bcen able to putorth any OO cvidence from thc statcment of the witncsscs or to suggcst that V7 Z thc was not fairlyconducted Once thc has becn a conducted by the policeand there is no evidence on rccord that the lllVCSllgatlOll was not fair or impartialthepetltioner was at libertyto avail lcgalremedycvcn at the tilne of framingof chargeOr recordingof statementsofthe witnessesbut thosc rcincdics availableto hun werc not availcd Even in this petitionthcre is nothiiigto show that thc ItlVCStlgatlOll was not fair Thcre is no nothingOll rccord to prove the involvcment of Abhcy SinghChautala or to show that he was wrongly found innocent or the investigation was not conductedin fair and impartial manner Ieamed counsel for thepctitioner hasnot becn ablc lo provc thc Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 301 1 CrlVlisc Nol119909 of 2006 191 1 involvement of Abhey SinghChautala There is no groundtO 1SSUC directionsfor of the case when the trial is likelyto conclude There are total 61 witnesses out ofwhich 32 have alrcadybcen cxaminedand 2 have becn lefl out beingunnecessary and 1 witness has cxpiredduringpendency of and statements of the rcmaining 1 r witnessesarc yetto bc recorded 0 In Raiiv Ranian Sineh LalatVllll and anothcr Vs C I Union ofIndia and others 2006 661SCC 613it has bcen hcld by lhc C Honble ApcxCourt that on flling beforc the competcntCoutt I the role of Agcncyshould comc to an cnd and the only Z remedywith the Court lSto dcal with the Inattcrs includingthc scopc of lr under Section CrP The relevant obscrvationsof I 1hcIIonblc ApexCourt are as underl 08 Cn 7 Ct lt is thus clear from the above judglnentthat oncc a Z chargesheet IS i5led in the competentCourt after completionof the i thc proccss of lnonitoring by this Court for thc purpose of lnakingCBl and other investigating agenciesconcernedperforintheir function of into the offences concerned comes to an end and thcreaftcr it 1S only the Court itl which the chargesheetis filed which is to dcal with all matters relatingto the trial of lhe accused including lnattersfallingwithin the scopeofSection 173 We agreewith the above Vlew cxprcssed Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 302 9 1 CrleMisc NoM79909 of2006 1101 1 bythis Court In our view monitoringof pending trial is subversionof criminal law as it standsto mcan that thc Courtebehind the back ofd the accuscd is cntcringinto a dialogue with the agcncy Thereforc there can bc no monitoring afler the is Oled m r 0 The lIonblc Apcx Court in case of Statc of Bihar and 3 another Vs JAC Saldanha and others 1980 19SCC 554 hcld that C5 thereis a clealcut and well demarcatedsphereof activityin thc Ilcld ofl I crime detection and crime lt was further held that Z of an offence is the fleld exclusivclyrescrved by the C cxccutive throughthc police and Statc Govcrnnlcnt has I over that The role of agency comes to an 08 oo cnd when the challan is before the Coull and thc onlyremedy 7 left is undcr Scction 17389CrC The l Ionblc ApcxCourt observcd as Z undcrl m 46 of an offencc is the fleld cxcluslvcly reservedbythe executivethrough thepolice the over which vests in the State GovcrnmentIt is the boundendutyof thc executivc to if an offence is a1leged and bringthc offendcr to book Once it invcstigatcsand Onds an offence havingbeen coinlnitted lt IS lts dutyto collcct evidence for the purpose of provingthc offcnce Oncc that is and the invcstigatingofficer sublnits Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 303 ld t 4 CrVlisc NolVl19909 of 2006 Illl 1 1 reportto lhc Court requcstingthc Court to take ofthe offence under Scction 190 CrCits dutycomes to an end On a cognizance of the offencc bcingtakcn by the Court thc policc function of lllvcstigatlollcomes to an end subjcctto thc provision 1 containedin Section 17381 then commcnccs thc 0 function of the judicialyto detcrmlllC C3 whether an offence has been colnmitted and if so I C5 whether by the person or personschargcdwith thc I crime In thecircumstances the judgincntand order of Z theHigh Court was set aside bythis Court 2t I The I Ionblc Apcx Court in State of Karnataka Vs 08 and another 2002 11 RCR6Criminall480 observed 11 thal whileexercising powers under Section 482 CrPC the Court does not 2 Z function as a Court of appealor reVlS1011 Such powcr is to be cxerciscd and ex debitojustitiaeto do real and substantialjusticcfor lhc of which alone Courts exists 1t has further bcen held that powcrs under Section 482 CrPC should be used with carc caution and and for thc adininistrationofjusticeonly Ol to prevcntabusc or injustice to the party Siinilar vicw has bcen taken in judgmentrcported in MeCAbraham and another vs State of Maharashtra and others 2003 1I RCRCriminall 452 that judicialinterfercnce witb discrction of thc authorityto arrestor notto arrestthe accused should not bc cxcrcisedlnechanically but with caution Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 304 0 a J CrleMiscNolVl9909 of 2006 1121 94 The 1IonbleApex Court as well as this Court havc held in thatspecdytrial is essentialingredicnt ofreasonablcfair variOUS andjustprocedure under Article 21 ofthe Constitution oflndia andit is a constitutionalobligationof the Stateto dcvise such a procedure which ensurespecdytrial ofthe case The Honble ApexCourt in Manka 1 0 GandhiVs Union of India AIR 1978 SC 597 and Hussain Ara Khatun 0 Vs Stateof Bihar AlR 1979 SC 1360has observed that spcedytrial is 0 implicit in thc broadsweep and the context of Articlc 21 of thc I C Constitution of Indial the case of State of Bihar Vs Maksudan Sineh I AIR 1986Patna 38 theHonble ApexCourt observedas underl Z 46 T0 concludeon this aspectthe answer to thc qucstion tr posedat vcry outsetis renderedin the afrmativc and il I held that the constitutionalrightof thc accused to a 1S 08 r speedypublic trial in all crilninal now flowingfrorn Article 21 of the Constitution byvirtue of 7 Z a mandatei s identical in thc contcxt with Ll the constitutional guarantceinsertcd by the sixth ainendmentin the American Constitution 17 ln case the prayer of the petitionerfor lS allowedat this stage the rightof speedytrial to thc accuscd undcr Articlc 21 of the Constitution of India shall be violatcd specially when thc trial is about to conclude Alloreover it would bc a dc novo trial which is not pernlissibleunder law Moreover all the accusedhave already 1 disclosed their dcfencc and have even put suggestions to prove wltnesses Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 305 0 Crl Misc NolVl79909 of2006 1131 C The agency as well as thc petitioner havc alrcadycome to know about the defence of thc accused at this stage and if thc is ordered thcrc would be paddingin thc and thc cannot be fair lt has beenheld in a nulnbcr of thatno ordcr should be passcdagainstany accuscd without affordingany i ofhearing 0 Thc presentpetitionis pcndingfor the last morc than 3 years 0 alld thc allcgcdaccused have not bcen arrayedas Thc I C5 llonble Supreine Court in case Devine Retreat Center vs State of Kcrala I RCR6Criminal9373 hashcld as underl Z 46 Wc are concerned with the question as to whethcr the r I IighCourt could havc passed a judicialorder directing I investigationagainstthe appellantand its activltlCS 06 without providing an of beingheard to l Qo The case in hand is a case wherc the criminal law is 7 Z directed to bc sct in motion 011 the basis of thc ll allcgations madein anonyinous pctitionfiled in thc lIigh Court Ntojudicialorder can cver bc passedby any Court without providinga rcasonable opportunityof being hcard to a person Iikelyto be affectedbysuch ordcr and particularlywhen such order rcsults ltl drastic consequences ofeffecting ones own rcputation 93 Similar obscrvationswere inade by thc Ilonble SuprclncCourt in tllc casc of2009RCCrimina11318 Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 4 CrlMisc NoMw79909 of2006 1141 It is clear from the cited abovethat the Court should not intervenein the mattcrs of which under the schemc of CrPC has been vested in the policeauthoritiesbut an exception has also becnmadcwhcrcin in ccrtain circumstances Coun can intervenein ordcr to do justiceto the partiesThis rare interferenceshould bc to correct r injus1lcc to the party Ol to check failure of injustice if it is ncccssary 10 0 prcvcntinjustice donc to the partyon account of intervcntion of influcntiai 0 persons I lowevcr in the presentcase the learned counsel for the C9 has not been able to make out a case where the Court can I intcrfcrc in thc investigation on the groundthat the has not Z becn fairlyconducted and the salne should bc handed over to CI3I or any Q othcr agency The pleafor further is not tenable I at thc slagewhen the trial is likelyto conclude 50011 The has 08 Cn also not availed the available at various stagcsof trial and 7 even at this stagealso nothinghas been broughton record cven after Z rccordingthe statemcnts of 32 witnesses that the allcged accuscdwcre a partyto cominission ofinurder or theywere wronglyfound lllllOCCnt Moreovcr the other accusedare facingtrial since April2006 Kcepingtn view thc facts and circumstanccsof the present case dctailcd discussion and thelegaJposition as lnentionedabove therelS 110incrit in the contcntionsraised by the leamed counsel for thc pctitioncr and thepetitionbeingdevoid ofanymerit is dismissed CHAUDHARYI JUDGE NlaYILI 2010 mghav 1 1 Rani Anita 2012.07.05 14: 48 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document