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Sunday 21 May 2023

Whether Special Court Can Order FIR Against Investigating Officer For Failure To File Chargesheet Within 180 Days U/ S 59 of NDPS Act?

 The learned Judge on the basis of the material on record has

recorded his prima facie opinion about the commission of an

offence under Section 59 of N.D.P.S. Act by this applicant.

The learned Judge has not awarded any sentence to him. So

the right of the accused to meet the case which he would be

made to face has not in any way tinkered with or taken away.

18. It is to be noted that the approach of the learned

Judge being Special Judge under the N.D.P.S. Act is consistent

with the object and spirit of the enactment. It is to be noted

that while implementing the provisions of the enactment such

as N.D.P.S. Act all concerned at their respective place are

required to demonstrate equal seriousness. If such seriousness

is not demonstrated then it can frustrate the object and

intention of such enactment. It needs to be stated that in

order to ensure such seriousness by all concerned the stringent

provisions have been made. Section 59 of the N.D.P.S. Act is

one such stringent provision. It provides for penal

consequences in case of an act by anyone, which is not

consistent with the object and intention. It is submitted that

the opportunity was not given to him to explain the reasons

for delay in filing the charge sheet. In my view, this objection

can be taken care of by perusing the questions put to the

applicant and answers given by him. He has categorically

stated that investigation was complete on 13.10.2021. It is not

his case that after these questions by the Court and answers

given by him, he was in any manner prevented by the Court

from placing on record his explanation. The questions put to

him and answers given by him to those questions clearly

indicate that he was granted an opportunity to explain each

and every aspect. In fact the applicant has admitted that in all

respect the investigation was completed on 13.10.2021.

Applicant had an opportunity to place his detailed explanation

on record when he was called upon to file the say to the bail

application. The perusal of the say or reply to the bail

application would show that it was conspicuously silent

about the reasons for delay in filing the charge sheet. In fact

the say filed by the prosecutor on 27.01.2022 would reveal

that on phone, he had questioned the applicant about the

delay in filing the charge sheet. However, he did not answer

him. He finally went to meet him on 28.01.2022. It is,

therefore, seen that throughout the proceeding, he has not

placed the reasons for delay in filing the charge sheet on

record. It is, therefore, seen that the failure on his part is

serious wrong. Learned judge has found that this wrong is

fully covered within the dragnet of Section 59 (1) of the

NDPS Act.

25. In my view, therefore, this decision recognizes the

powers of the court to pass such an order. It is true that in this

case, the order of initiation of disciplinary action was passed.

The question whether the case warrants a disciplinary action

or penal action depends upon the facts and circumstances of

each and every case. In this case, the learned Judge found it

appropriate to order initiation of a penal action as provided

under Section 59 of N.D.P.S. Act. It needs to be stated that as

and when it is found by any Court at any stage of proceeding

that the actionable wrong within the meaning of Section 59 of

the N.D.P.S. Act has been committed then in that event it has

to be approached and dealt with firmly by initiating an

appropriate action. In this view of the matter, I do not see any

substance in the revision. The same is accordingly dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL REVISION APPLICATION NO.106 OF 2022

Ashish Devidas Morkhade  Vs  State of Maharashtra 

CORAM : G. A. SANAP, J.

DATE:- 21/04/2023


1. Rule. Rule made returnable forthwith. Heard finally

by consent of learned Advocates for the parties.

2. In this criminal revision application, challenge is to

the order passed by the learned Special Judge (N.D.P.S. Act)

dated 08.04.2022 whereby, the learned Judge has directed

Special I.G., Nagpur Zone and Superintendent of Police,

Nagpur (Rural) to take action for registration of crime against

PW-10 Aashish Devidas Morkhade, Investigating Officer for

the offences found to have been prima-facie committed by

him.

3. The relevant facts are as follows:-

The applicant -Aashish Devidas Morkhade is Police

Sub Inspector. At the relevant time he was attached to Police

Station, Butibori, Nagpur. Crime bearing No.318/2021 was

registered at Butibori Police Station for commission of

offences under Section 20(b) and Section 29 of Narcotic

Drugs and Psychotropic Substances Act, 1985 (herein after

referred as N.D.P.S. Act) against three accused persons. The

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contraband recovered in the case was Ganja weighing 78.360

Kg. The investigation for the said crime was entrusted to the

applicant. He carried out the investigation from 27.08.2021.

Prior to this date the investigation was carried out by A.P.I.

Shri Manik Choudhary. After completion of the investigation,

the charge sheet was not filed within time namely within 180

days from the date of the production of the accused before

concerned Court for remand. The accused, therefore, on

25.01.2022 applied for bail under Section 167(2) of the

Cr.P.C. in short default bail. The prosecutor filed the say in the

said proceeding. The Special Court by order dated 28.01.2022

allowed the bail application and granted bail to the accused on

the ground of failure of the applicant to file the charge sheet

within time.

4. Learned Special Judge while passing the bail order

made certain observations against the applicant. The learned

Judge at the stage of deciding the bail application prima-facie

found that this act of the applicant was an offence punishable

under Section 59(1) of the N.D.P.S. Act. While deciding the

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bail application the direction was issued to the Special I.G.,

Nagpur Zone and Superintendent of Police, Nagpur (Rural)

for initiating necessary action against the applicant. It is to be

noted that pursuant to this direction, departmental proceeding

was initiated against him. He was suspended.

5. The prosecution adduced the evidence in the main

trial. The Special Judge by his order dated 08.04.2022

convicted and sentenced the accused. The learned Judge on

consideration of the facts, circumstances and available

evidence on record prima-facie found that this act on the part

of the applicant was intentional and as such it was an offence

under Section 59 of the N.D.P.S. Act. The learned Judge

accordingly issued the direction to the Special I.G., Nagpur

Zone and Superintendent of Police, Nagpur (Rural) for

registration of crime at appropriate Police Station against

PW10- Aashish Devidas Morkhade.

6. Being aggrieved by this order, the applicant has

approached this Court. It is the case of the applicant that there

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was no negligence or any misconduct on his part. It is his case

that delay occasioned for filing of the charge sheet was

properly explained by him. It is further stated that he has

been facing the department proceeding for this lapse. It is

further stated that the learned Special Judge has no

jurisdiction to issue such direction. According to the applicant,

he took all possible steps to file the charge sheet within time.

However, due to the circumstances which were beyond his

control, he could not file the same within time. It is,

therefore, submitted that the order which would ruin his

entire service career needs to be set aside.

7. The Police Inspector, Police Station Butibori, filed

his detailed affidavit and opposed this application. In short, in

his reply, the in-charge of the Butibori Police Station has

stated that the order passed by learned Special Judge is in

accordance with law. In the reply, the chart of the dates and

events has been provided to demonstrate that the applicant

was responsible for this mess and, therefore, he has to face the

consequences. It is further stated that except the applicant no

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other officer was responsible for this mess.

8. I have heard Shri A.M. Jaltare, learned Advocate for

the applicant and Shri A.M. Chutke, learned APP for the

State. Perused the record and proceedings.

9. Learned Advocate for the applicant submitted that

learned Special Judge exceeded his jurisdiction by issuing

direction to the Special I.G. Nagpur for registration of the

First Information Report against the applicant and also to take

necessary action for obtaining the sanction for his prosecution.

Learned Advocate submitted that learned Special Judge was

expected to make the relevant observations touching the issue

in his order and issue the direction to the I.G. to explore the

possibility of initiation of appropriate proceeding as per law

against the applicant. Learned Advocate submitted that

applicant was not given an opportunity to explain the

circumstances before passing the order against him. Learned

Advocate submitted that there is no material on record to

sustain the findings and ultimate order passed by the learned

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Special Judge. Learned Advocate submitted that at the most

the case in question would be fit for issuing direction for

conducting the departmental inquiry and not more than that.

In order to substantiate his submission learned Advocate has

placed reliance on three reported decisions. Learned Advocate

further submitted that the intention of the applicant as has

been attributed to him has not been supported by the record.

Learned Advocate submitted that despite granting bail to the

accused they were not able to furnish the security and as such

they could not come out of jail till the judgment, which

resulted into their conviction and sentence.

Learned Advocate further submitted that no doubt

was raised about the fairness of investigation because the

investigation and the evidence collected during the course of

investigation has resulted into conviction of the accused.

Learned Advocate submitted that these two facts are required

to be taken into consideration.

10. Learned APP submitted that at the time of

recording of the evidence of applicant as PW-10 he was given

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an opportunity by the learned Special Judge to explain the

relevant facts and circumstances. Learned APP took me

through the deposition of PW-10 and pointed out that learned

Special Judge by exercising his power put number of questions

to the applicant. Learned APP submitted that while answering

those questions, he has indirectly admitted serious lapses on

his part. Learned APP further took me through the reply filed

by the learned APP to the bail application made by the

accused under Section 167(2) and submitted that learned APP

was not properly appraised about this fact by the Investigating

Officer. Learned APP further submitted that in the reply filed

under the signature of the applicant to the said application, no

categorical statement was made as to the delay occurred in

filing the charge sheet in time. Learned APP submitted that

considering the serious nature of the matter and the evidence

on record the learned Special Judge was right in passing the

order. Learned APP has relied upon a decision in the case of

Sahabuddin and Another Vs. State of Assam reported in

(2012) 13 SCC 213 to substantiate his submission that

learned Special Judge has power to issue such a direction.

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11. Before I proceed to appreciate the rival submissions,

it would be necessary to state that the N.D.P.S. Act was

enacted in the year 1985 because the then existing enactments

were not found sufficient or they had become out dated to

take care of the menace of Narcotic Drugs. This Act was

enacted with an object to consolidate and amend the law

relating to Narcotic Drugs to make stringent provisions for the

control and regulation of operations relating to Narcotic

Drugs and Psychotropic Substances and to provide for

forfeiture of property derived from and used in illicit traffic in

Narcotic Drugs and Psychotropic Substances. The necessity

was felt for the purpose of the implementing the provisions of

the international conventions on Narcotic Drugs and

Psychotropic Substances, Act. Consistent with this object and

reasons behind enactment, stringent provisions have been

made with regard to the punishment for the proved crime.

Similarly, in order to avoid the misuse of this crime, ample

checkes and balances have been provided by enacting the

mandatory provisions. Those provisions can be traced from

Section 41 to Section 57. Section 59 has also been enacted

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consistent with this object and reason behind enactment of the

N.D.P.S. Act. Section 59 provides the punishment for the

offences relating to the failure of an officer in duty or his

connivance in the contravention of the provisions of N.D.P.S.

Act. It is to be noted that while deciding the cases under

N.D.P.S. Act as well as any action proposed to be taken under

Section 59 of the N.D.P.S. Act, a great care is required to be

taken. Every action and step must be in a direction to fulfill

the very object of the enactment of the N.D.P.S. Act. There

was specific object behind the provisions in the form of

Section 59. The law makers in their wisdom expected that all

concerned in implementing the N.D.P.S. Act must be

cautious and serious about their duty. In this case, the above

stated facts would be required to born in mind.

12. The relevant facts which gave rise for this order

have been stated in the order by the learned Special Judge. It

is seen that on 27.08.2021 the investigation was handed over

to the applicant. The applicant has not stated that he was not

aware of the mandate of the law. Before handing over the

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investigation to him on 27.08.2021, the investigation was

conducted by API Mr. Manik Choudhary. On 24.09.2021

the C.A. report after analysis of the samples was received at

Police Station. On 01.10.2021 the inventory was prepared and

certified by the Judicial Magistrate, First Class Nagpur. The

applicant recorded last statement of the witness on 01.10.2021.

13. The undisputed facts which could be seen from the

record indicate that the approach of the applicant was careless,

casual and not in consonance with the provisions of law.

Despite receipt of the CA report on 24.09.2021, again on

12.10.2021 he forwarded requisition to FSL, Nagpur for C.A.

report of the samples. FSL, Nagpur, on the very next date

i.e. 13.10.2021 communicated in writing to the applicant that

samples were already analyzed and the CA report and relevant

samples were returned back to the Police Station. This fact

would show that applicant despite receipt of CA report, from

24.09.2021 to 12.10.2021 was sitting idle. The requisition

sent by him to FSL on 12.10.2021 would reflect upon his

serious misconduct.

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14. It is, therefore, seen that on 13.10.2021 he was

made aware that CA report was already forwarded after

analyzing the samples to the Police Station. So from

13.10.2021, no further investigation was carried out by him.

From 13.10.2021 to 26.11.2021 he did not take steps for filing

the charge sheet. On 26.11.2021 he submitted the case diary

for scrutiny to S.D.P.O, Nagpur (Rural). The S.D.P.O.

Nagpur (Rural) returned the case diary to the applicant on

08.12.2021. The applicant submitted the case diary with

papers for verification to Additional Superintendent of Police,

Nagpur on 10.12.2021. The Additional S.P. returned the case

diary with papers to the applicant on 28.12.2021. According

to the applicant, till 14.01.2022 the investigation of the crime

was with him. It is seen that from 29.12.2021 to 14.01.2022

he did not file the charge sheet in the Court. He has come

before this Court with an explanation that he was busy in the

investigation of other crimes entrusted to him by his superior.

It needs to be stated that the police officer attached to the

Police Station is bound to be entrusted with the investigation

in more than one crime. This cannot be the ground and

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justification for not filing the charge sheet in a case where

investigation is complete in all respect. It is further pertinent

to note that for the purpose of filing the charge sheet, the

investigation officer is not personally required to carry the

papers to the court. Such work is required to be done by the

court Moharir or constable attached to said police station. In

this case, the applicant failed to take the requisite care.

15. At this stage, it is pertinent to note that the crime in

question by any standard was serious crime. In this crime

78.360 Kg Ganja was recovered. The officer has not stated

that he was not aware of the provisions of the N.D.P.S. Act.

Similarly, such defence cannot be accepted. It is to be noted

that in serious crimes like crime relating to human body

punishable under Section 302 I.P.C. the custody period

cannot be extended beyond 90 days. In such serious crime

charge sheet has to be filed within 90 days. There is no

provision for extension of period. As per the provisions of

N.D.P.S. Act initial judicial custody period is of 180 days. It is

further seen that there is provision for extension of this period

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to further 180 days. In this context, the action of this

applicant is required to be examined. During this period, as

stated above, if he had any difficulty in filing the charge sheet,

it was open for him to approach the prosecutor and make an

application for extension of time. No steps were taken by

him. It is stated that on his application, leave was sanctioned

to him from 15.01.2022 to 29.01.2022. However, he resumed

his duties on 25.01.2022. The period of 180 days expired on

28.01.2022. The right to apply for default bail accrued in

favour of the accused on 21.01.2022. They applied for default

bail on 25.01.2022. The bail was granted on 28.01.2022. All

these facts in totality are required to be taken into

consideration.

16. In the backdrop of serious objection having been

raised to the order passed by the Learned Special Judge, it

would be necessary to examine the relevant part of the order.

It would also be necessary to see the evidence of applicant.

Perusal of his evidence which is on record at page 138 would

show that after completion of the cross examination of the

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applicant on behalf of the defence, the learned Judge asked

near about 10 questions to the applicant. The object behind

these questions was to seek his explanation about this fact. It

is to be noted that learned Judge was aware of real state of

affairs because he had decided the bail application and at that

time he was confronted with the serious lapse on the part of

the Investigating Officer. Applicant has admitted that

investigation was complete in all respect on 13.10.2021. He

has admitted that he was aware that charge sheet has to be

filed in such crime within 180 days from the date of the arrest

of the accused. He has stated that CA report was already

available with him. He has stated that due to inadvertence,

charge sheet remained to be filed. It is seen that on all the

relevant aspects he was questioned. The answers given by him

have been taken into consideration by the learned Judge.

17. At this stage, it is necessary to examine the powers

of the learned Judge to put such questions to the witness.

Section 165 of the Indian Evidence Act 1872 empowers the

Judge to put questions to the witness or order production of

document. The learned Judge put all the questions to PW-10

in exercise of his power under Section 165 of the Evidence

Act. The learned judge was not only cautious of rights of the

applicant but also the rights of the accused persons and the

prosecution. The learned Judge after completion of the

questions by him to the applicant granted the accused and

prosecution an option to cross examine or to ask any question

to the applicant in the context of the answers given to the

Court questions by the applicant. The record reveals that they

declined this offer. It is therefore, apparent that the objection

raised on behalf of the applicant that before passing the order

he was not granted an opportunity to defend himself

appropriately is without substance. It is to be noted that this

objection cannot be accepted for more than one reason. The

learned Judge on the basis of the material on record has

recorded his prima facie opinion about the commission of an

offence under Section 59 of N.D.P.S. Act by this applicant.

The learned Judge has not awarded any sentence to him. So

the right of the accused to meet the case which he would be

made to face has not in any way tinkered with or taken away.


18. It is to be noted that the approach of the learned

Judge being Special Judge under the N.D.P.S. Act is consistent

with the object and spirit of the enactment. It is to be noted

that while implementing the provisions of the enactment such

as N.D.P.S. Act all concerned at their respective place are

required to demonstrate equal seriousness. If such seriousness

is not demonstrated then it can frustrate the object and

intention of such enactment. It needs to be stated that in

order to ensure such seriousness by all concerned the stringent

provisions have been made. Section 59 of the N.D.P.S. Act is

one such stringent provision. It provides for penal

consequences in case of an act by anyone, which is not

consistent with the object and intention. It is submitted that

the opportunity was not given to him to explain the reasons

for delay in filing the charge sheet. In my view, this objection

can be taken care of by perusing the questions put to the

applicant and answers given by him. He has categorically

stated that investigation was complete on 13.10.2021. It is not

his case that after these questions by the Court and answers

given by him, he was in any manner prevented by the Court

from placing on record his explanation. The questions put to

him and answers given by him to those questions clearly

indicate that he was granted an opportunity to explain each

and every aspect. In fact the applicant has admitted that in all

respect the investigation was completed on 13.10.2021.

Applicant had an opportunity to place his detailed explanation

on record when he was called upon to file the say to the bail

application. The perusal of the say or reply to the bail

application would show that it was conspicuously silent

about the reasons for delay in filing the charge sheet. In fact

the say filed by the prosecutor on 27.01.2022 would reveal

that on phone, he had questioned the applicant about the

delay in filing the charge sheet. However, he did not answer

him. He finally went to meet him on 28.01.2022. It is,

therefore, seen that throughout the proceeding, he has not

placed the reasons for delay in filing the charge sheet on

record. It is, therefore, seen that the failure on his part is

serious wrong. Learned judge has found that this wrong is

fully covered within the dragnet of Section 59 (1) of the


19. I have minutely perused the reasons recorded by

the learned Judge. The learned Judge has placed on record his

anguish. The learned Judge on the basis of the material

collected during the course of investigation convicted the

accused persons. However, despite conviction of the accused

persons, learned Judge deemed it appropriate to issue the

direction which has been questioned in this revision.

20. It is to be noted that first priority is required to be

given to the investigation by Investigating Officer. It is

observed that first priority is not given for conducting the

investigation. The failure to display the promptness in

conducting the investigation in serious crime can result in

either tampering with the prosecution evidence or vanishing

of the said evidence. The fate of the case of the prosecution

depends upon the quality of the investigation. Prompt, swift

and careful investigation is necessary to ensure the fairness.

Such investigation can bring about a quality to the

investigation. It is observed that by and large a casual

approach is adopted in conducting the investigation even in

the serious crimes. This case is classic example of it. The

misconduct on the part of the investigating officer, despite

completion of investigation well in time, has extended the

benefit of default bail to the accused. It is true that the accused

could not furnish the surety and therefore, they could not

come out of the jail. However, it does not mean that on this

ground the investigation officer would get himself exonerated

from the dragnet of Section 59 of the N.D.P.S. Act.

21. In my view, therefore, learned Special Judge was

well within his power. Learned Special Judge has not exceeded

his jurisdiction. Learned Judge has simply directed IG to take

action for registration of crime against the applicant. It is

submitted that order of the learned Judge directing them to

obtain sanction is not according to law. On going through the

order, I am of the opinion that learned Judge has not given

any direction for obtaining the sanction. Learned Judge has

stated about an appropriate action for registration of crime

and sanction for prosecution. It is not out of place to mention

that after registration of the First Information Report, the

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investigation may be carried out. Investigation may result in

filing of the charge sheet or filing of report under Section 169

or A, B, C summary. If there is material to file charge sheet

then question of obtaining sanction would arise. In that event

depending upon the result of the investigation, the officer

would be required to move either the Central Government or

the State Government for the sanction. It, therefore, cannot be

said that learned Judge has directed them to obtain the

sanction and prosecute him by side tracking the provisions of

law.

22. At this stage, it would be necessary to mention that

unless and until the Courts at every stage takes serious view of

such a matter, the police officer would not improve. It is to be

noted that investigation is the most important part of the

criminal justice system. The fate of entire case of prosecution

depends upon the quality of the investigation. It is, therefore,

high time to send an appropriate message to all concerned, as

and when the Court is confronted with such a case. It is to be

noted that quality of investigation is one of the factors for

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dismal rate of conviction. It is observed that in number of

cases a very casual and careless approach is adopted by the

Investigating Officer. There could be number of reasons.

Whatever be the reasons, the Courts as and when confronted

with such case, must deal with the same with iron fist. In my

view, the approach of the learned Special Judge is highly

courageous and commendable. It is noticed that by and large

there is tendency to avoid such steps or action at the behest of

the officer by taking lenient view. In my view, therefore,

learned Judge was well within his jurisdiction. He has not

exceeded his jurisdiction.

23. Learned Advocate relying upon the decision in the

case of Jayrajsinh Madhubha Gadhvi Vs. State of Gujarat

reported in 2022(4) Cri.CC 206 submitted that Court cannot

issue direction to the officer to grant sanction. In my view,

this proposition is not applicable to this case, because learned

Judge has not issued any direction to the competent authority

to grant sanction. Learned Judge has made observation that as

and when any action is taken, the action of

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sanction would also be part of the same. The question of

obtaining sanction in this case would arise if the report or the

charge sheet is proposed to be filed on the basis of the

investigation. The second judgment learned Advocate relied

upon is the case of Ashok Kumar Nigam Vs. State of Uttar

Pradesh and another reported in (2016) 12 SCC 797. In this

case, in the departmental proceeding, the punishment

awarded by the disciplinary authority was increased by the

High Court. The Hon’ble Apex Court in this case has held

that it was an error on the part of the High Court because the

High Court could not have placed the appellant in a worse-off

position for having challenged punishment awarded by the

disciplinary authority. In my view, therefore, the decisions

relied upon by the learned Advocate are not applicable to the

case of the applicant.

24. Learned APP in support of his submissions, has

relied upon the decision in the case of Sahabuddin and

Another Vs. State of Assam (supra). Para 32 of this decision

would be relevant. It is extracted below:-

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“Para 32. In our considered view, action should be

taken against both these witnesses. Before we pass any

direction in this regard, we may refer to the judgment of

this Court in Gajoo Vs. State of Uttarakhand, (2012) 9

SCC 532, where the Court had directed an action

against such kind of evidence and witnesses.

“ 20. In regard to the defective investigation,

this Court in Dayal Singh v. State of Uttaranchal

[Criminal Appeal 529 of 2010, decided on 3rd

August, 2012] while dealing with the cases of

omissions and commissions by the investigating

officer, and duty of the Court in such cases, held

as under:-

“27. Now, we may advert to the duty of the

Court in such cases. In Sathi Prasad v. State of

U.P. (1972) 3 SCC 613, this Court stated that it

is well settled that if the police records become

suspect and investigation perfunctory, it

becomes the duty of the Court to see if the

evidence given in Court should be relied upon

and such lapses ignored. Noticing the possibility

of investigation being designedly defective, this

Court in Dhanraj

Singh v. State of Punjab (2004) 3 SCC 654,

held:-

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“5. In the case of a defective investigation the

Court has to be circumspect in evaluating the

evidence. But it would not be right in acquitting

an accused person solely on account of the

defect; to do so would tantamount to playing

into the hands of the investigating officer if the

investigation is designedly defective.”

28. Dealing with the cases of omission and

commission, the Court in Paras Yadav Vs.

State of Bihar (1999) 2 SCC 126, enunciated

the principle, in conformity with the previous

judgments, that if the lapse or omission is

committed by the investigating agency,

negligently or otherwise, the prosecution

evidence is required to be examined dehors

such omissions to find out whether the said

evidence is reliable or not. The contaminated

conduct of officials should not stand in the way

of evaluating the evidence by the courts,

otherwise the designed mischief would be

perpetuated and justice would be denied to the

complainant party.

29. In Zahira Habibullah Sheikh(5) and

another v. State of Gujarat & Ors. (2006) 3

SCC 374, the Court noticed the importance of

the role of witnesses in a criminal trial. The

importance and primacy of the quality of trial

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process can be observed from the words of

Bentham, who states that witnesses are the eyes

and ears of justice. The Court issued a caution

that in such situations, there is a greater

responsibility of the court on the one hand and

on the other the courts must seriously deal with

persons who are involved in creating designed

investigation. The Court held that-

“42. Legislative measures to emphasize

prohibition against tampering with witness,

victim or informant have become the imminent

and inevitable need of the day. Conducts which

illegitimately affect the presentation of evidence

in proceedings before the Courts have to be

seriously and sternly dealt with. There should

not be any undue anxiety to only protect the

interest of the accused. That would be unfair, as

noted above, to the needs of the society. On the

contrary, efforts should be to ensure fair trial

where the accused and the prosecution both get

a fair deal. Public interest in proper

administration of justice must be given as much

importance if not more, as the interest of the

individual accused. In this Courts have a vital

role to play.” (Emphasis in original)

30. With the passage of time, the law also

developed and the dictum of the Court

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emphasized that in a criminal case, the fate of

proceedings cannot always be left entirely in the

hands of the parties. Crime is a public wrong, in

breach and violation of public rights and duties,

which affects the community as a whole and is

harmful to the society in general.

33. In Ram Bali v. State of U.P. (2004) 10 SCC

598, the judgment in Karnel Singh v. State of

M.P (1995) 5 SCC 518 was reiterated and this

Court had observed that: (Ram Bali case, SCC

p. 604- para 12)

“ 12... In case of defective investigation the

court has to be circumspect [while] evaluating

the evidence. But it would not be right in

acquitting an accused person solely on account

of the defect; to do so would tantamount to

playing into the hands of the investigation

officer if the investigation is designedly

defective’.

34. Where our criminal justice system provides

safeguards of fair trial and innocent till proven

guilty to an accused, there it also contemplates

that a criminal trial is meant for doing justice to

all, the accused, the society and a fair chance to

prove to the prosecution. Then alone can law

and order be maintained. The Courts do not

merely discharge the function to ensure that no

innocent man is punished, but also that a guilty

man does not escape. Both are public duties of

the judge. During the course of the trial, the

learned Presiding Judge is expected to work

objectively and in a correct perspective. Where

the prosecution attempts to misdirect the trial

on the basis of a perfunctory or designedly

defective investigation, there the Court is to be

deeply cautious and ensure that despite such an

attempt, the determinative process is not

subvered. For truly attaining this object of a

“fair trial”, the Court should leave no stone

unturned to do justice and protect the interest

of the society as well.

35. This brings us to an ancillary issue as to how

the Court would appreciate the evidence in such

cases. The possibility of some variations in the

exhibits, medical and ocular evidence cannot be

ruled out. But it is not that every minor

variation or inconsistency would tilt the balance

of justice in favour the accused. Of course,

where contradictions and variations are of a

serious nature, which apparently or impliedly

are destructive of the substantive case sought to

be proved by the prosecution, they may provide

an advantage to the accused. The Courts,

normally, look at expert evidence with a greater

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sense of acceptability, but it is equally true that

the courts are not absolutely guided by the

report of the experts, especially if such reports

are perfunctory, unsustainable and are the result

of a deliberate attempt to misdirect the

prosecution. In Kamaljit Singh v. State of

Punjab (2003) 12 SCC 155, the Court, while

dealing with discrepancies between ocular and

medical evidence, held:- (SCC p. 159, para 8)

“ 8. It is trite law that minor variations between

medical evidence and ocular evidence do not

take away the primacy of the latter. Unless

medical evidence in its term goes so far as to

completely rule out all possibilities whatsoever

of injuries taking place in the manner stated by

the eyewitnesses, the testimony of the

eyewitnesses cannot be thrown out.”

36. Where the eye witness account is found

credible and trustworthy, medical opinion

pointing to alternative possibilities may not be

accepted as conclusive.

“34…...The expert witness is expected to put

before the Court all materials inclusive of the

data which induced him to come to the

conclusion and enlighten the court on the

technical aspect of the case by [examining] the


terms of science, so that the court, although not

an expert, may form its own judgment on those

materials after giving due regard to the expert’s

opinion, because once the expert opinion is

accepted, it is not the opinion of the medical

officer but [that] of the Court. (See Madan

Gopal Kakkad v. Naval Dubey (1992) 3 SCC

204).” (emphasis supplied)

21. The present case, when examined in light of

the above principles, makes it clear that the

defect in the investigation or omission on the

part of the investigation officer, cannot prove to

be of any advantage to the accused. No doubt

the investigating officer ought to have obtained

serologist’s report both in respect of Ext. 2 and

Ext. 5 and matched it with the blood group of

the deceased. This is a definite lapse on the part

of the investigating officer which cannot be

overlooked by the Court, despite the fact that it

finds no merit in the contention of the accused.

22. For the reasons afore-recorded, we dismiss

this appeal being without any merit. However,

we direct the Director General of Police,

Uttarakhand to take disciplinary action against

Sub-Inspector, Brahma Singh, PW6, whether he

is in service or has since retired, for such serious

lapse in conducting investigation. The Director


General of Police shall take [a] disciplinary

action against the said officer and if he has since

retired, the action shall be taken with regard to

deduction/stoppage of his pension in

accordance with the service rules. The ground

of limitation, if stated in the relevant rules, will

not operate as the inquiry is being conducted

under the direction of this Court.”

25. In my view, therefore, this decision recognizes the

powers of the court to pass such an order. It is true that in this

case, the order of initiation of disciplinary action was passed.

The question whether the case warrants a disciplinary action

or penal action depends upon the facts and circumstances of

each and every case. In this case, the learned Judge found it

appropriate to order initiation of a penal action as provided

under Section 59 of N.D.P.S. Act. It needs to be stated that as

and when it is found by any Court at any stage of proceeding

that the actionable wrong within the meaning of Section 59 of

the N.D.P.S. Act has been committed then in that event it has

to be approached and dealt with firmly by initiating an

appropriate action. In this view of the matter, I do not see any

substance in the revision. The same is accordingly dismissed.

26. Before parting with the matter, it is necessary to

appreciate the assistance rendered by Shri Amit Chutke,

learned APP to this Court the resolving the issue involved in

the matter.

27. Learned Advocate submits that the applicant would

like to take recourse to the available remedy against this order.

He, therefore prays that interim order may be extended for

three months.

28. Learned APP submits that Court may pass an

appropriate order.

29. In view of this, it is ordered that interim order to

continue for three months from today.


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