JUDGMENT
Gopal Krishan Vyas, J.
1. In this revision petition, the petitioner has prayed for quashing order dated 4.11.2006 passed by the Addl. Chief Judl. Magistrate, Suratgarh in Criminal Complaint Case No. 102/2006. It is prayed that the said order may be declared illegal and the police may be directed to re-investigate the matter.
2. As per facts of this case, a soldier namely Kamlesh, permanent resident of Nohar (District Hanumangarh) was married to Suman d/o Lekh Ram. He was posted at the relevant time in Jammu & Kashmir and had come home on leave. It is revealed from the facts of the case that there was some dispute in between Kamlesh and his wife Suman and her family members. Petitioner Sant Lal, father of Kamlesh, is said to have tried to settle the matter. In the course of events, Kamlesh filed an application under Hindu Marriage Act for restitution of conjugal rights; and, on 26th February, 2006 when he had come home on leave, Kamlesh went to his in-laws house at Suratgarh for the purpose of compromise. He left Nohar on 25th February, 2006 but, till 6th March, 2006, he did not return to Nohar and, therefore, petitioner Sant Lal went to his son’s in-laws’ house but they did not talk to him. However, on 7.3.2006, Sant Lal received a telephonic message that the dead body of his son Kamlesh was found at Virdhwal Head (drowned in the canal water), therefore, petitioner complainant and his relatives rushed to Rajesar Police Station. The body of deceased Kamlesh had been sent to Suratgarh Hospital where the body was lying. The complainant requested the police to investigate the matter.
3. It is alleged that having received the dead body of his son after the post mortem had been conducted, Sant Lal alongwith his relatives went to his son’s inlaws’ house and told them that Kamlesh had come there and how, in what circumstances, he died. According to the complainant, he was told by the in-laws of his son that they gave him something for eating and he became unconscious and, thereafter, they threw him in the canal at Virdhwal Head. It is alleged that in-laws of Kamlesh expressed regrets at their mistake and begged to be excused.
4. Sant Lal, father of the deceased Kamlesh, immediately rushed to Police Station Suratgarh and informed the police. It is alleged that no action was taken by the police, therefore, the complainant approached the Dy. S.P., Suratgarh who also did not take any action saying that death of Kamlesh was suicidal.
5. According to the petitioner, he made all efforts for registration of the FIR; but, he failed to get it registered by the police and, therefore, in these compelling circumstances, he filed the complaint before the Magistrate.
6. Upon the aforesaid complaint filed by petitioner Sant Lal, the Magistrate proceeded under Section 202, Cr.P.C. and the matter was sent for enquiry. The enquiry officer filed a negative report. After receiving the negative report and upon the order passed by the Magistrate under Section 202, Cr.P.C, being dissatisfied with the report, the petitioner moved an application before the Court mentioning that the police did not undertake proper investigation and they have tried to convert the case of murder into suicidal and protecting the culprits. The petitioner further stated in the said application that the police did not enquire the matter as per statement of Kishan Lal who had categorically stated that the deceased was in an unconscious state on 1.3.2006 at his in-laws’ house which information was given to him by the family members of the in-laws of Kamlesh saying that he had consumed some drugs. According to the complainant- petitioner no fair and proper enquiry was conducted by the police because right from the initial stage investigating officer treated this case as suicidal case. It is alleged that family members of his deceased son’s in-laws are influential persons and they have wielded influence to stifle the investigation. It is alleged that with connivance with the police they have managed manipulations and the police have not sent viscera in proper manner for correct reports. Therefore, a prayer was made by the petitioner before the Magistrate that the complaint may be sent under Sections 156(3) and 173(8) of the Code of Criminal Procedure for re-investigation; but, vide impugned order dated 4.11.2006, the learned Magistrate refused to sent the complaint for re-investigation and passed order that the complainant may adduce his evidence before the Court itself; and, the matter was ordered to be listed in the Court for the purpose of recording statements and taking evidence on record.
7. Learned counsel for the petitioner vehemently argued that the petitioner’s young son who was an Army personnel was, in fact, murdered and his dead body was found in the canal in decomposed condition, but no proper investigation was conducted in the case. It is contended that right from the initial stage, in connivance with the culprits, the police continued to show forth that the death of Kamlesh was suicidal and proceeded to conduct the investigation under Section 174, Cr.P.C. without even registering the FIR. It is further argued by learned counsel for the petitioner that on 13.3.2006, a complaint was filed before the Dy. S.P., Suratgarh for registering the FIR and conducting proper investigation but the FIR was not registered and, the complaint was ordered to be tagged to the proceedings conducted under Section 174, Cr.P.C.
8. Learned counsel for the petitioner contended that in the investigation so ordered under Section 202, Cr.P.C, the police appear to have conducted false investigation and right from beginning the police moored the conclusion to one of suicidal death and did nothing to unravel the truth. Learned counsel for the petitioner invited my attention towards an important fact that earlier also two brothers of Suman, Inderjeet and Ghanshyam had made assault upon the petitioner while his son Kamlesh was on duty in Jammu & Kashmir and, in respect of that incident, a complaint was filed. It is thus obvious that relations were tense in between the two families. Learned counsel for the petitioner urged that in the circumstances the FIR ought to have been accepted for registration and conducting proper investigation into the allegations made. Admittedly, as per investigation of the police, deceased had left his in-laws’ house on 28.2.2006 for returning to Nohar according to the statements of the in-laws of the deceased. It is said from the enquiry of the police that he travelled in the Roadways bus and he was dropped at the bus-stand by his brother-in-law Inderjeet. Thus, before his death, the deceased was with Inderjeet, brother of his wife Suman, which is the last-seen evidence in this case. Thereafter, dead body of Kamlesh was found floating in the canal water at Virdhwal Head. It is contended by learned counsel for the petitioner that totally false investigation was made by the police in this case and, therefore, in the interest of justice, the complaint filed before the Magistrate ought to have been sent under Section 156(3), Cr.P.C. for investigation. It is vehemently urged that the order impugned is patently illegal and, in the facts and circumstances of the case, amounted to denial of justice to the petitioner.
9. In this case, notices were issued and Mr. R.S. Gill, Advocate put in appearance on behalf of the non-petitioners No. 2 to 6.
10. On behalf of the non-petitioners, it is submitted by Mr. R.S. Gill that as per the investigation deceased Kamlesh has committed suicide and there is no irregularity in the investigation conducted by the police. He urged that proper investigation was made in the case and, therefore, in this case there is no warrant for interference in the impugned order passed by the learned Magistrate which was passed upon the satisfaction of the Magistrate upon the enquiry report and opportunity was granted to the petitioner to lead evidence. Learned counsel for the non-petitioners has cited several judgments in support of submission, reported in (1) 1984 RLW 256, Sohan Singh v. State of Rajasthan (2) 1980 Cr.L.J. 482, Joy Krishna Chakraborty and Ors. v. State and Anr. (Calcutta High Court), (3) 2007 (2) WLC (Raj.) 552, Ishwar Singh v. Baga Ram, (4) 1996 (1) RLW 23, Pankaj v. State of Rajasthan, and (5) J976 Cr.L.J. (SC) 1361, Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors.
11. After the notices were issued, in this case, record was summoned. Upon perusal of the record, after hearing the arguments, certain important facts came to the notice of the Court in the case.
12. In this case, admittedly, the body of the deceased was found in the canal at Virdhwal Head RD 243 GR and information was given by one Puran Chand to the police on 7.3.2006. On the same day, at 8.30 P.M., after registering the report-memo (marg) No. 3/06, the police proceeded to make enquiry under Section 174, Cr.P.C. and one Sri Ram, A.S.I, was asked to make the enquiry. I have carefully perused the case-diary produced before the Court. According to the case-diary dated 7.3.2006, the body of the deceased was taken out from the canal and, upon search, a black purse was found in the pocket of the trousers of the deceased, in respect of which the case-diary reads as under:
—vKkr yk’k dks ugj esa ls ckgj fudky dj uke irk gsrq o fluk[r gsrq mldh iSUV dh tsc ls ,d cVqvk feyk dkys jax dk ftlesaa ns[kk x;k rks ,d ysVj o deys’k dqekj S/o lUryky tkrh Lokeh fu- okMZ ua- 28 uksgj fy[kk gqvk feyk—-
Apparently, at the time of the search in the pockets of the trousers of the deceased, as per the above report made in the case-diary dated 7.3.2006, only a purse and letter were found and nothing else. However, the record of the case does not indicate that any fird-memo was drawn at that time of the said recovery from the pockets of the clothes of the deceased. It is also obvious from the case-diary that diary dated 7.3.2006 is drawn on page No. 63. In the next case-diary dated 8.3.2006 is drawn on page No. 62 and the diary dated 9.3.2006 is drawn on page No. 61. It creates suspicion how the reverse numbers of pages are mentioned.
13. In this case, in the entire investigation, there is no final conclusion come out as to what was the cause of death of deceased Kamlesh. In the port mortem report, the opinion is expressed as follows:
By above observation, in the opinion of Medical Board, cause of death cannot be ascertained due to heavy decomposition, so visceras has been preserved, duly sealed and sent for chemical examination to FSL Jodhpur.
Therefore, proper investigation was to be made with regard to the cause of death, whether it was suicide by drowning in the canal water or homicidal. In any case, it was expected of the State investigating agency not to show apathy in the matter and make all efforts to dig out the truth.
14. It is very strange that vide fird-memo dated 8.3.2006, in presence of motbir Hansraj and Mahendra, some material which is said to be found from the pocket of deceased Kamlesh is reported. According to that fird drawn on 8.3.2007, it is stated that from the pocket of the deceased one purse of black colour, one diary, telephone diary, canteen card, one military railway warrant, one marriage card, one leave certificate, one watch TITAN of golden colour in running condition, one photo currency of Rs. 598/-, bus ticket from Suratgarh to Pili Banga and train ticket of Hanumangarh to Nohar alongwith other documents were recovered. On the one hand, this fird-memo runs entirely contrary to the afore- quoted assertion made in the case-diary dated 7.3.2006 and, on the other hand, there is rare of the rarest event that from the body of the deceased which is found decomposed due to remaining in water for 6-7 days, as per the investigation, the numerous documents and paper reported to have been found in the pocket on the clothes of the deceased, copies of which have been placed on record, were intact including those hand written, without undergoing any damage due to remaining in canal water for so many days. There is no indication of aforesaid materials in the report made in the case-diary dated 7.3.2007 (quoted hereinabove). In only shows that the subsequent recovery as such has been falsely shown.
15. It is strange that in this case the investigating officer recorded statements of the in-laws’ family members in which it has categorically been accepted be all the member that the deceased had come there on 26.2.2006 and left their house on 28.2.2006 and his brother-in-law Inderjeet dropped him at the bus-stand From the entire investigation, a clear reflection in made that the investigating officer set a prior conclusion of suicidal death while proceeding with the investigation. It is an important fact to be noticed in this case, that numerous paper documents remained intact whose recovery is shown from the pockets of the deceased whereas the body itself is recovered heavily decomposed for the reason that it remained in water for as many as 7 days.
16. In my opinion, in the abovementioned facts and circumstances, it was the duty of the police to register the case and carry out proper investigation into the matter to ascertain the cause of death.
17. At the first instance, when the complaint was filed before the Magistrate, upon the facts of complaint the Addl. Chief Judl. Magistrate was under obligation to send the complaint for investigation after registering the FIR under Section 156(3). Cr.P.C. In my considered opinion, the learned Addl. Chief Judl. Magistrate has committed error while sending the matter for investigation under Section 202, Cr.P.C. upon the complaint. It is also required to be observed that in a case where allegations for offence under Sections 302, 201 and 120B, I.P.C. have been leveled the proper course is to investigate the matter thoroughly after registering the FIR. But, the learned Magistrate passed order directing the complainant to adduce his evidence before the Court while refusing the prayer for sending the matter to the police for re-investigation. The complainant who was himself knocking the doors of the police for investigation could not be expected to produce evidentiary material before the Court in support of his complaint. In all fairness, having entertained the complaint sending it under Section 202, Cr.P.C. itself was contrary to principle of natural justice and law. The learned Magistrate ought to have exercised jurisdiction under Section 156(3), Cr.P.C. and should have directed the police station concerned to register the case and proceed with investigation. I have perused the judgments referred to by the learned counsel for the non-petitioners. The facts and circumstances of the present case are entirely different to attract the proposition of law laid down therein.
18. In the present case, after perusing the entire record of the case and noticing the inaction on the part of the police, vide order dated 30.10.2007, notice was issued to the Inspector General of Police, Bikaner Range, Bikaner to explain before this Court why FIR was not registered when complaint was filed before Dy. Superintendent of Police, Suratgarh for investigation and how the complaint was tagged with proceedings under Section 174, Cr.P.C. instead of registering the case. The Inspector General of Police was also directed to remain present before this Court on the next date of hearing.
Shri Laxman Meena, IPS, Inspector General of Police, Bikaner Range, Bikaner is present today in the Court. All the facts noted hereinabove have been brought to his knowledge, it is, therefore, expected from him that he will look to the entire affairs in the matter and will take action.
19. In the aforesaid facts and circumstances, this revision petition is allowed, impugned order dated 4.11.2006 passed by the learned Addl. Chief Judicial Magistrate, Suratgarh in Criminal complaint No. 102/2006 is set aside. While exercising the revisional power, the order passed by the learned Addl. Chief Judl. Magistrate on 26.4.2006, written on the complaint itself, for sending the complaint under Section 202, Cr.P.C. to the Dy. S.P., Suratgarh is also quashed. The learned Addl. Chief Judl. Magistrate is directed to send the said complaint itself filed by the complainant under Section 156(3), Cr.P.C. for registering the FIR to the Police Station concerned. Upon registering the FIR, the matter will be thoroughly investigated, however, it may be observed here that unnecessarily nobody will be harassed in any manner.
20. Upon appreciation of the entire state of affairs in the case, I leave it open to the Inspector General of Police, Bikaner Range, Bikaner, who is present in the Court today, to decide whether any departmental action is required to be taken against the erring/defaulting officials.
21. The record received here shall be returned forthwith. The learned Addl. Chief Judl. Magistrate is also directed to send back the record to the concerned police station.