Virender Prasad Singh vs Rajesh Bhardwaj & Ors

2. An extremely unusual order passed by the High Court has fallen for consideration in this appeal which has been filed on behalf of the appellant/complainant Virender Prasad Singh. The said order was passed on the basis of a petition filed by the respondent No. 1/accused Rajesh Bhardwaj who is facing the charges of very serious offences like provided under Sections 302, 201 and 120 B of the Indian Penal Code (hereinafter referred to as "IPC" for short). By the impugned order, 2 the learned Judge of the High Court has issued certain directions, whereby he has directed the re-examination of the completed investigation by an officer of the rank of Director General of Police (DGP). An extremely unusual course has been taken, whereby the counsel for the respondent No. 1/accused, who had filed the petition under Section 482 before the High Court, was asked to give a proposal of three names of the police officers of the DGP rank for examining the records of the completed investigation, wherein even the charge sheet was already filed. Similar choice seems to have been given even to the counsel for the appellant/informant to suggest some names. The appellant/informant (respondent before the High Court) did not choose to give any name, with the result that the High Court went on to select one Mr. Manoj Nath, an IPS of 1973 Batch for assistance in the matter. The High Court observed:-

3. The First Information Report refers to the incident which took place on 30.11.2007, according to which at 10 p.m. on that day, the accused went to the house of the deceased Sonu, the daughter of the appellant/complainant and left with the deceased on his motorcycle in presence of the witnesses. Since the deceased did not return home, the family members started searching for both. It has come on record that subsequently at about 12.30 a.m., the deceased Sonu had talked to her mother's sister Dr. Anita and informed her that she was with the accused and would come back after getting married with him. On the very next day i.e. on 1.12.2007, at 7.15 a.m., the family members of the deceased were informed by the Railway Police that the dead body of the girl is lying on the side of the Railway track at Karisath Railway Station and her Mobile set bearing No. 9304915589 was also lying there. The complainant's brother Dr. Sanjeev reached the Railway Station and identified the body of the deceased. The deceased had injuries on her head and a portion of her leg was cut. Inquest Panchnama was executed by the 5 Railway Police and the dead body was sent for postmortem. At this time, the complainant/father of the deceased was out of station. After he returned home, he was informed about the deceased having been taken by the respondent No. 1/accused at night on 30.11.2007. On 6.12.2007, a written complaint was filed. It was disclosed in the said complaint that the deceased was in love with Rajesh Bhardwaj, (respondent No. 1/accused) and wanted to get married with him and was persuading him for the last six months for marriage; However, the accused wanted to get rid of her, as he was having an affair with some other girl and it was due to this reason that the accused committed the murder of the deceased and threw her dead body near the Railway track at Karisath Railway Station, with the intention to create a false impression that the deceased had died in an accident. The Railway Police registered the case as GRP Case No. 73 of 2007 for offences punishable under Sections 364, 302, 201 and 120B IPC. An application for orders under Section 438 of the Criminal Procedure Code (Cr.P.C.) was moved by the respondent No. 1/accused before the Sessions Court, Arrah, which was dismissed by the Court vide order dated 18.3.2008. Needless to mention that the respondent No. 1/accused was not in the 6 custody of the police till then. He has not been arrested even till date. Be that as it may, on finding that the accused was absconding, a proclamation under Section 82 Cr.P.C. was issued on 20.3.2008 by the Judicial Magistrate. It was also pasted on the residence of the respondent No. 1/accused on 27.3.2008. The respondent No. 1/accused, after about four months i.e. on 1.7.2008, moved a petition before the High Court for the same relief under Section 438, which was registered as Criminal Misc. No. 33158 of 2008. That was dismissed by the High Court vide order dated 1.7.2008. The respondent No. 1/accused did not stop there and moved to this Court by way of a Special Leave Petition (Crl.) No. 5140 of 2008. It came before this Court on 28.7.2008 and this Court dismissed the same. However, it was observed that:-

Needless to mention that the respondent No. 1/accused never surrendered. On 6.4.2009, one more petition came to be filed before the High Court being Cr. WJC No. 352 of 2008, wherein the High Court was pleased to direct the Magistrate to dispose of the 7 objection petition filed by the complainant after hearing both the parties and it was directed that till then the issuance of process of attachment under Section 83 Cr.P.C. would remain stayed. Very strangely, in this order, the High Court observed:-

4. On 15.5.2009, another petition being Crl. WJC No. 394 of 2009 came to be filed before the High Court by the mother of the accused. On that date, the investigation was in progress, but the final report had not been submitted by the police. It was expressed in this petition that the investigation was being influenced from the complainant's side and there was a prayer for direction to the State Government to get the case investigated by an independent investigating agency such as Central Bureau of Investigation. On 18.6.2009, police came to the conclusion that the offences alleged against the accused were committed by him and, therefore, the charge sheet came to be filed for the offences punishable under Sections 302, 201 and 120 B IPC.

6. On 25.6.2009, after the charge sheet was filed, the father of the accused moved an application before the learned Judicial Magistrate, Arrah, saying that he did not have faith in the said Court and wanted to move a petition for transfer of this case before the District Judge, Arrah, and, therefore, the proceedings of the case be stayed. All this was probably done as the Magistrate had already initiated the proceedings under Sections 82 and 83 Cr.P.C., finding that the accused was absconding. The Magistrate took the view that the father of the accused had no locus standi to file the said application and also came to the conclusion that there appeared to be good reasons for proceeding against the accused. The Magistrate, therefore, took cognizance of the offences. Then again, for some inexplicable reasons, nothing happened for five months and again on 10.11.2009, an application was moved before the Sessions Judge, Bhojpur, Arrah for an order under Section 438 Cr.P.C. for anticipatory bail. The learned Sessions Judge noticed that the respondent No. 1/accused was 9 already asked by this Court to surrender before the court below and move the bail application. It was also noted that the respondent No. 1/accused thereafter never bothered to appear though more than one year's time had elapsed. On that reasoning, the application was dismissed. Undaunted by this dismissal, the respondent No. 1/accused moved another application being Crl. Misc. Application No. 41823 of 2009 before the High Court on 21.12.2009, i.e. after more than one month of the dismissal of the earlier bail application. It was contended before the High Court that the charge sheet was filed only for the offences punishable under Section 306 IPC and not under Sections 302, 201 and 120 B IPC. A very novel statement was made that his father's kidney had failed and that the accused was going to donate the kidney and he should be granted provisional anticipatory bail. What flabbergasts us is that on this broad plea, the High Court granted eight months' provisional anticipatory bail to the respondent No. 1/accused. Very strangely, all this was on the backdrop of the rejection of all the applications made by the accused under Section 438 Cr.P.C. before all the Courts including this Court. Again, to say that we are surprised by this order, would be an under-statement. We also did not 10 understand as to why eight months' time was required by the accused and granted by the High Court for donating the kidney. The respondent No. 1/accused again moved an application on 13.1.2010, stating that there was a typing error in the order dated 21.12.2009 passed by the High Court where he was wrongly described as Rakesh Bhardwaj instead of Rajesh Bhardwaj. It was also submitted that the charge sheet was filed under Sections 302, 201 and 120 B IPC and not under Section 306 IPC as was represented to the High Court. The matter then pended for another four months and came for hearing only on 4.5.2010. However, by that time, Dr. Vijay Laxmi, the mother of the respondent No. 1/accused had already expired. After her death, the respondent No. 1/accused was substituted in her place. It was during the course of arguments on Misc. Application No. 41823 of 2009 that the subject of the investigation not being properly done, cropped up, and it was urged that the matter should be re-investigated, though it was informed to the Court that the charge sheet was already filed about eight months prior to this date and the matter was also committed to the Court of Sessions for trial. The High Court ultimately passed the impugned order. The case was then fixed for hearing before the High Court on 11 21.6.2010 as the first case in the list. However, the trial has been stayed and the High Court has gone to the extent of selecting a new investigating officer.

23. We are not at all impressed by the Section 482 application firstly filed by the mother of the respondent No. 1/accused and then by the respondent No. 24 1/accused himself. We do not see any reason why the High Court should have entertained such application at all, particularly, in view of the complete lack of bona fides on the part of the respondent No. 1/accused. That application was, therefore, liable to be dismissed straightaway. Since technically the matter is still pending before the High Court, we only issue a direction to the High Court to dismiss the same. The impugned order of the High Court is set aside and, therefore, this appeal succeeds. The Sessions Judge before whom the matter is pending shall proceed with it in accordance with law.

New Delhi.