S.K. Shukla vs State Of M.P. And Others

Petitioner has filed this petition under Section 482 of Cr.P.C. to expunge the adverse remark and direction given against him by the learned Special

Judge (POCSO), Teonthar District Rewa in ST No. 59/18 dated 23.05.2016. He also requests to restrain the authority from initiating the disciplinary

proceeding against the petitioner.

Prosecution case in short is that the petitioner was the Investigating Officer in Crime No. 79/2018 registered at Police Station Suhagi District Rewa

for the offence punishable under Sections 363, 366 of IPC and Section 3/4 of POCSO Act. On 23. 05.2018, while considering the argument before

framing the charges, the learned trial Court found and observed that the prosecutrix was minor. Her father has lodged the missing complaint of her on

which the offence under Sections 363 and 366 was registered by the police. Thereafter, the prosecutrix appeared before the police station along with

accused of the case and given her statement that on the false pretext of marriage, the accused committed rape upon her. The parents of the

prosecutrix have given their consent for medical examination of her but surprisingly the petitioner made it write from prosecutrix that she does not

want to perform her medical test whereas no question of consent arises when she was minor and her parents have given their consent already. The

learned judge observed that the petitioner did not register the offence of Section 376 of IPC whereas sufficient prima facie materials were available in

the case, moreover, he registered the case under the offence of Section 3/4 of POCSO Act along with Sections 363 and 366 of IPC which cannot be

registered in such manner. Therefore, the learned judge has sent a copy of order to SP Rewa for informing about the erroneous investigation made by

the petitioner.

Learned counsel for the petitioner submits that the learned Court below has passed the adverse remark against the petitioner without giving any

opportunity of hearing, hence, the adverse remark deserves to be expunged. He submits that in the case, the statement of prosecutrix under Section

161 of Cr.P.C. was recorded by the lady police official on 27.03.2018 and the prosecutrix did not say about the commission of rape. Further, in her

statement recorded under Section 164 of Cr.P.C., the prosecutrix did not allege against the accused about rape. The petitioner tried to obtain consent

for MLC but the prosecutrix did not give the same, hence, MLC could not be done. The learned Court below not only pass the adverse remark against

the petitioner but also compelled the authority to initiate departmental inquiry against the petitioner. It is well settled principle of law that such type of

remarks cannot be allowed to stand as no opportunity of hearing was given to petitioner, this is against the principle of natural justice. Therefore, the

remark passed by the Court below may be expunged and higher authority may be restrained to initiate the disciplinary proceeding against the

petitioner. In support of his contention, he has relied the judgment of the Hon’ble Apex Court as well as this High Court, same are mentioned

herein under:-

A.M. Matur Vs. Pramod Kumar Gupta reported in (1990) 2 SCC 533.

State of MP Vs. Mohd. Nameem Khan reported in AIR 1964 SC 703.

K.P. Singh Kushwaha Vs. State of MP reported 2005 (2) MPHT 423.

On the other hand, learned counsel for the State opposes the submission of petitioner’s counsel and argued that the offence was committed

against the minor girl who is aged about 14 years and the FIR was registered by the her father, the offence involved in the case are serious in nature.

He submits that while deciding the issue, the Court below found that the investigating officer has not conducted the medical examination of the

prosecutrix on the ground of her refusal, however, the parents of prosecutrix have given their consent in this regard. Since, the prosecutrix is minor,

her consent is immaterial. He further argued that in her statement recorded under Section 161 of Cr.P.C., the prosecutrix stated that accused

committed rape upon her twice to thrice and some blood were oozing from her private part even then neither the offence of Section 376 of IPC was

registered against the accused by the petitioner nor conducted any medical examination. The Court below has only communicated to SP about the

negligence committed by the petitioner and no adverse remark has been passed. Further, the Court below has also not directed to conduct any

departmental inquiry against the petitioner, the Court below merely communicated aforesaid order just to bring the act of the police officer in

conducting investigation. Therefore, this petition deserves to be dismissed.

Heard both the parties and perused the case diary.

On perusal of case diary, it appears that the petitioner is SHO posted at police station Suhagi District Rewa and he has conducted the investigation

in Crime No. 79/2018 for the offence punishable under Sections 363 and 366 of IPC and Section 3/4 of POCSO Act. By the impugned order, the

learned Court below has observed the adverse remark of carelessness against the petitioner in conducting the investigation of the case.

The adverse remark passed in the different paras of impugned order are also herein quoted as under:-

“… … … … ….        376

â€​

‘................................ . ..

363, 366 3/4 363, 366 3/4

। ।

‘‘..............................      376

।â€​

The aforesaid remarks were passed by the learned Court below when it was found that when the prosecutrix was appeared in the police station,

she stated about commission of rape with her by the accused, even also in her 161 statement but the petitioner has not added the offence of Section

376 IPC. Further, even after taking the consent from her parents as she was minor, the petitioner has not conducted the medical examination of her.

On perusal of the case diary, it shows that initially, on the complaint of father of prosecutrix, the FIR was registered on 25.03.2018 for the offence

punishable under Sections 363 and 366 of IPC, thereafter the police has recorded the statement of prosecutrix and other witnesses on 26.03.2018. On

perusal of Statement of prosecutrix under Section 161 of Cr.P.C., it appears that she stated about the fact of intercourse by the accused. Although, on

28.03.2018, in the statement under Section 164 of Cr.P.C., the prosecutrix did not allege about the rape against the accused. Further, a consent letter

of father of prosecutrix is also found annexed in the case diary. It also shows from the case diary that on 27.03.2018 when the prosecutrix was

brought before the medical examiner, she did not give her consent for the same. On 21.04.2018, the petitioner has submitted the charge sheet before

the Court under Section 363, 366 of IPC and Section 3/4 of POCSO Act. The learned trial Court expressed his dissatisfaction with the investigation

conducted by the petitioner saying that when the prosecutrix stated about the intercourse by the accused, offecne of Section 376 IPC shoud have been

added in the case, further, when the prosecutrix was minor and her parents are ready to perform her medical examination, same should be done

without any fault. The Court has also disagreed with the combination of registered offence Section 3/4 of POCSO Act with the offence of Section

363 and 366 of IPC. Prima facie, the view taken by the learned trial Court seems to be correct.

There is no doubt that the trial Court has authority to inform the higher police authority about the faulty investigation made by the investigation

officer even with some adverse remark against his conduct but to apply the principal of natural justice, it is necessary to the Court to give an

opportunity of hearing to the investigation officer to explain under what circumstances, he did so. In this regard, in the case of Manish Dixit and others

Vs. State of Rajasthan reported in AIR 2001 SC 93, the Hon’ble Apex Court has held has under:-

Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the court against any person, particularly when such

remarks could ensure serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in

respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the

principles of natural justice…………...â€​

It is well settled by the Hon’ble Apex court that castigating remark made by Court against any person which are likely to have adverse

consequences on his future career of a person concerned should not be made unless the person concerned has been given an opportunity of hearing in

the matter in respect of the proposed remarks or strictures.

In the present case, it is true that the learned Court below raised the finger on the investigation conducted by the petitioner. The trial court

observed that the petitioner investigated the matter with carelessness whereas offence was serious in nature as same pertains to minor prosecutrix.

But, on perusal of impugned order, I do not find any proceeding whereby the learned Court below gave any opportunity of hearing to the petitioner to

explain the circumstances under which the investigation got vitiated. Although, prima-facie appears that the petitioner committed something

undesirable but in view of the principal of natural justice an opportunity to explain the circumstances is the basic requirement and in the absence of the

same, passing the adverse remark should not be proper and justifiable.

Accordingly, the adverse remark made by the Court below as mentioned in para 7 are hereby expunged. So far as another relief of restrain the

authority from initiating the disciplinary proceeding against the petitioner, in view of the fact that no direction has been made by the trial Court in this

regard, I do find any reason to pass any order.

Accordingly, this petition is hereby dispose of.