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2016 Supreme(P&H) 2677
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Anita Chaudhry
Crl. Misc. No.M-21042 of 2015 (O&M)
Anil Kumar
v.
State of Haryana & Ors.
{Decided on 05/07/2016}
For the Petitioner:Mr. Deepender Singh, Advocate.
For the Respondent: Mr. Deepak Sabharwal, Addl. A.G., Haryana.
Investigation--Police is not empowered to conduct a fresh, de novo or re-investigation without the permission of court.
DNA Test--It can be ordered by the Court--If accused refuses then he can be physically compelled to undergo.
Headnote:(A) Criminal Procedure Code, 1973, S.173(8) & S.173(2)--Further investigation--Permission of court--Whether permission of court would be necessary or not for further investigation or Re-investigation--Held; yes (1) Police can conduct further investigation with formal permission of court after submission of report u/s 173(2)--
(i) Further investigation does not itself have the effect of wiping out directly or indirectly the investigation already conducted by the investigating officers.
(ii) Police is not empowered to conduct a fresh, de novo or re-investigation without the permission of court. (Paras 21 & 23)
(B) Evidence Act, 1872, S.45--Prohibition against self incrimination--DNA test can be ordered by the Court--If accused refuses then he can be physically compelled to undergo--No violation of any right of accused--Constitution of India, 1950, Article 20(3). (Para 25)
Mrs. Anita Chaudhry, J.:- The instant petition has been filed under Section 482 Cr.P.C. read with Article 226 of the Constitution of India for quashing the order dated 09.06.2015, passed by JMIC, Faridabad in FIR No.139 dated 14.05.2015, registered under Sections 376-C, 354-A, 323, 120-B IPC, Police Station Ballabgarh Sadar, District Faridabad.
2. The facts which are essential to be stated are as follows. Respondent no.3, a convict undergoing sentence in a murder case made a complaint upon which FIR No.139 dated 14.05.2013 was registered under Sections 376, 354-A, 323, 120-B IPC. Allegations of sexual assault by Shahid Khan, Deputy Jail Superintendent in the District Jail, Faridabad were made. The petitioner was the Jail Superintendent in the same jail. The police filed a cancellation report. The victims approached the High Court for intervention. Vide order dated 04.08.2014 the petition was disposed of in view of the status report that was filed by the police. It noted that cancellation report had been submitted and the Court had summoned the complainant. A protest petition was later filed.
3. The petitioner received a notice regarding a DNA test. He pleads that the allegations of sexual assault were against the Deputy Jail Superintendent and no allegations were levelled against the petitioner and the FIR was registered on the directions of Chief Judicial Magistrate, Faridabad and a cancellation report was submitted, which was verified by the Assistant Commissioner of Police, Ballabgarh and was filed in the Court on 12.08.2013.
4. The petitioner has further pleaded that respondents no.3 & 4 had approached the High Court seeking transfer of the investigation to the Crime Branch and after seeking a detailed reply and the status, the petition was disposed of with no directions. It was further pleaded that the complainant filed a protest petition, which is pending wherein the petitioner has not been made a party and the case is being adjourned from June, 2014 onwards. It was pleaded that respondents no.3 & 4 had made their respective statements in the protest petition and his name had not appeared even then.
5. The petitioner further pleaded that meanwhile, a complaint was given to the National Human Right Commission and as per the information available with him still there were no allegations of sexual harassment against the petitioner. It was pleaded that during the pendency of the protest petition, D.G.P. Crimes, Haryana transferred the investigation to the State Crime Branch on 28.07.2014. It was pleaded that no investigation was pending which could be transferred and no permission from the Court was taken for further investigation.
6. The petitioner received a notice under Section 160 Cr.P.C. from the Inspector of the State Crime Branch on 25.04.2015 to appear in the Court of Judicial Magistrate, Faridabad to give his concurrence for a DNA test. The petitioner filed an application (Annexure P-20) before the Court asking for the status report and sought monitoring of the investigation by the Crime Branch. He also sought copy of the statements made by the complainant and the witnesses. The petitioner claimed that he had raised legal issues and without disposing of the application the Court had straightway called upon him to personally appear in the Court and make a statement as to whether he intended to give his DNA sample.
7. The petitioner challenges the order dated 09.05.2015 on the ground that once the cancellation report had been submitted and there was no order of further investigation and without taking the permission from the Court, the police could not start further investigations. It was pleaded that he was not named in the FIR or in the statements given in the past nor his name had appeared in the protest petition. It was pleaded that the Investigating Agency without informing the Magistrate who was dealing with the protest petition approached another Court for getting the statement of the victims recorded u
