Raju alias Riyazuddin vs State of U.P.

Amar Saran and Shyam Shankar Tiwari, JJ.—Since all the aforementioned criminal appeals have been filed against the judgment and order dated 20.1.2010, passed by the Additional Sessions Judge Court No. 18, Meerut in S.T. No. 933 of 2003, convicting and sentencing the Appellants to life imprisonment inter alia u/s 489B, I.P.C. and fine, the prayer for bail in the aforesaid cases is being considered by this common order.

Heard Shri Aditya Prakash Mishra, S. Ashraf Ali and Vivek Kumar Singh, learned Counsel for the Appellants in the connected appeals and learned Additional Government Advocate.

The prosecution case was that on an information from an informer, Sri. Ajay Kumar Chauhan, Station Officer, police station Nauchandi, the informant, accompanied by a posse of policemen reached Nauchandi mela where they apprehended the Appellants from near the "boat swing" who were trying to engage in passing off counterfeit currency notes as genuine at about 10.45 p.m. on 14.5.2001. The Appellants disclosed that they had been dealing with these notes a number of times and that one Baiju alias Robin Singh, who resided in Mission Compound has been providing them with the currency. The F.I.R. of this incident was lodged by Ajay Kumar Chauhan, P.W. 2 on 15.5.2001 at 00.40 hours.

The defence of the Appellants was that they had been picked up from their houses in the night of 13/14.5.2001 and falsely implicated in this case.

It was contended by the learned Counsel for the Appellants that only police witnesses have come forward to support the prosecution case. No independent witness has been produced. Even the notes were not sent to the Forensic Science Laboratory for confirmation that they were counterfeit currency and the Investigating Officer S.I. Kunwar Pal Singh, P.W. 4 admitted that he had not himself examined the counterfeit currency notes.

Learned Counsel further contended that at the highest the Appellants could only be said to be in possession of forged or counterfeit currency notes with an intention of using the same as genuine, which would not take their case beyond Section 489C, I.P.C. which is punishable with a sentence upto seven years and is a bailable offence. It was also submitted that no offence u/s 489B, I.P.C. was disclosed as no person has come forward to state that the accused were engaged in selling, or buying or receiving and using the notes as genuine, which were recovered from their pockets and not from their hands. The Appellants were on bail during trial. Some other minor contradictions were also pointed out as to whether the search of their own persons by the police party before searching the accused took place beside the place of incident, or 40 paces from that place. The two witnesses P.W. 2 Ajay Kumar Chauhan and P.W. 3 Rajendra Singh stated that the accused had signed on the package of sealed items, whereas the signatures of the Appellants were absent from the packages when they were examined in Court. No incriminating material was discovered when the Appellants were taken on police remand. Baiju alias Robin Singh was never arrested. It was improbable for the accused to remain at the mela for one and a half hours before the police could arrive and apprehend them.

Learned A.G.A., however, argued that for the mere laxity on the part of the Investigating Officer whether for extraneous considerations or due to ineptness in not sending the recovered currency notes to the Forensic Science Laboratory, the prosecution case could not be discarded. It was pointed out that the case stood established by the fact that the hundred rupee note which was recovered from the Appellant Ataur Rahman (Ext. Ka-1), the hundred rupee note, recovered from the Appellant-Mohd. Alam (Ext. Ka-4) and the hundred rupee note, which was recovered from the Appellant Akhtar (Ext. Ka-10) bore the same number, viz., J.M.U. 030460. Similarly, four currency notes of rupee fifty, which were recovered from Mohd. Alam (Ext. K-5 to 8), two fifty rupee currency notes, which were recovered from Akhtar (Ext. Ka-11 and 12) also bore the same number I.S.L. 498922. Similarly, four currency notes of rupee fifty, which were recovered from the Appellant Harish Arora (Exts. Ka-14-17) and three currency notes, which were recovered from Appellant Raju alias Riazuddin (Exts. Ka-19 to 21) bore the same number I.S.L. 498928. The other fifty rupee note, which was recovered from Ataur Rahman bearing No. I.S.L. 498921 was also part of the same series. Thus, it was submitted that even in the absence of a report of the Forensic Science Laboratory indicating that the said notes were counterfeit, the fact that the notes recovered from different accused bore the same number or were part of the same series could only lead to the inference of the notes being counterfeit, and the Appellants were using them with a knowledge that they were not genuine. It is well-settled in view of the decisions of the Apex Court inter Amar Singh Vs. Balwinder Singh and Others, Ram Bali Vs. State of Uttar Pradesh, Dashrath Singh Vs. State of U.P., that merely because the investigation is "designedly defective" or due to negligence of the Investigating Officer, the accused cannot be acquitted if there is other reliable evidence for substantiating their involvement in an offence. Incompetence and laxity of the investigating agency is also apparent from the fact that no step has been taken to arrest Robin Singh, whose name was disclosed and who was said to be the supplier of the counterfeit currency notes.

Examination of only police witnesses and absence of independent witnesses is also not fatal for the prosecution case. It is a well-known fact that independent persons are notoriously unwilling to become partisan and give evidence in cases, which they consider to be of no personal concern for them. Thus, it has been held in paragraph 11 in Appabhai and Another Vs. State of Gujarat, "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities."

So far as the contention that no offence u/s 489B, I.P.C. is made out, but if at all, only an offence u/s 489C, I.P.C. is disclosed, it may be noted that Section 489B not only speaks of selling, buying or receiving from any other person forged or counterfeit currency notes, but even "otherwise trafficking" in currency notes. If the Appellants were standing in a body at the crowded Nauchandi mela at about 10 p.m. near the "boat swings" with counterfeit notes in their pockets, as was suggested by the fact that the notes were of the same series, or bore the same number, even if no witnesses or shop keepers etc. have been examined for showing that they tried to pass off the notes to them, a presumption may be drawn that in the circumstances the presence of the accused at the spot was not innocent, and that they gathered there for the purpose of dealing and ''trafficking'' in the notes. It cannot, therefore, be said that even prima facie no offence u/s 489B, I.P.C. is disclosed. But the question whether an offence only u/s 489C or u/s 489B, I.P.C. is made out, is a matter which will be considered exhaustively when the appeal is finally heard.

Before concluding we must stress that it is only on account of such laxity on the part of an inept and possibly dishonest investigating agency which may have colluded with the accused, complete indifference of the general public in coming forward to give evidence in such crimes which can shake the very foundation of our economic superstructure and body politic, by treating the matter to be a matter, not of their personal concern, and often the hyper-technical approaches taken by the Courts in allowing bail to such elements, that we are seeing the proliferation of anti-national crimes and terrorism which is capable of destroying the financial and physical backbone of our country. We also think that it is time to consider the appropriateness of the recommendation of the Malimath Committee on Reforms in the Criminal Justice System, that some of the good features of the Inquisitorial System in France, Germany and the Continent can be adopted to strengthen the Adversarial System and to make it more effective. This includes the duty of the Court to search for the truth, to assign a proactive role to the Judges to give directions to the Investigating Officers and prosecution agencies in the matter of investigation and leading evidence with the object of seeking the truth and focusing on justice to the victims. Thus, the judicial and prosecuting officers could give some suggestions to the investigating machinery so that essential matters are not left out, by the investigating agency, especially where the crimes are complex or technical in nature. It can also provide a check in case the Investigating Officer colludes with an accused. In the present case if there was greater interaction by the judicial or the prosecuting officers, it would have been ensured that the recovered notes were sent to the Forensic Science Laboratory, and that serious efforts were made to apprehend Baiju alias Robin Singh, the alleged supplier of the counterfeit currency notes.

In Sakiri Vasu Vs. State of U.P. and Others, it has been held that Section 156(3) confers wide powers on the Magistrate to give directions for ensuring proper investigation. It was pointed out that in Sakiri Vasu that this power was not only confined to directions by the Magistrate to ensure that investigation takes place, but also to ensure the quality of the investigation, where there is reason to think that the Investigating Officer is not properly investigating or that he is acting in a mala fide manner. In paragraph 24 in Sakiri Vasu, it has been held that:

In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate u/s 156(3), Code of Criminal Procedure to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3), Code of Criminal Procedure we are of the opinion that they are implied in the above provision.

We think that such anti-national crimes of terrorism or counterfeit currency notes etc. be also taken up by the district Monitoring cells consisting of the District Judge, other judicial officers, the S.S.P./S.P. and the D.M. etc. in their monthly meetings.

The other contradictions pointed out by the learned Counsel for the Appellants are too minor in nature and their impact may be considered when the appeal is finally heard. In the circumstances enumerated above it is of no consequence that the Appellants were on bail during trial.

For all the aforesaid reasons, we are not inclined to grant bail to the Appellants.

The prayer for bail of the Appellants is rejected.

However, the hearing of the appeal is expedited.

Office is directed to prepare the paper book preferably within three months and to list these appeals for hearing thereafter.