Interim Order 12

Order Details: COPY OF ORDER
Pdf Text: Bail Application no. 1891/2021 and 1892/2021
FIR No. 103/2017
PS Special Cell
Rakesh Sehgal v. State & ors
12.04.2022
Present: Sh. Irfan Ahmed, Ld. Addl. PP for the State.
SI Rakesh on behalf of IO.
Previous IO SI Suneel Sidhu.
Sh. Sudharshan Ranjan, Ld. Counsel for applicant/
complainant.
Sh. S. K. Sharma, Sh. Yogender Kumar and Sh. Tejas Singh,
Ld. Counsel for accused/nonapplicants.
Briefly to recapitulate: An application for cancellation of bail
granted to nonapplicants Ravinder Sehgal, Nikhil Sehgal and Karan Sehgal
vide order dated 01.05.2021 has been moved.
On the last date of hearing, it was observed by this court that
during the anticipatory bail application hearings custodial interrogation of the
applicant/accused was sought by the investigating agency before the Ld. ASJ as
well as before the Hon’ble Delhi High Court on the ground that sustained
custodial interrogation is desirable to ascertain the author of the alleged
forgery. It was brought to my notice that the chargesheet was filed by the
concerned IO concluding the investigation. It was also informed to the court
that the IO has opted not to arrest the accused persons.
On the last date of hearing, Ld. Addl. PP has sought short
adjournment submitting that he has neither been briefed by the IO nor the IO
has bothered to appear before the court to assist Ld. Addl. PP.Under these
circumstances, the court was constrained to adjourn the matter and request the
concerned ACP to look into the matter personally and ensure that Ld. Addl. PP
is properly assisted.
Even today, neither any report has been filed on behalf of the
concerned ACP nor any official is present on behalf of concerned ACP to
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apprise this court as to if the ACP concerned was informed about the present
matter or not.
Be that as it may, the then IO SI Suneel Sidhu, who has filed the
chargesheet, is present in the court to assist Ld. Addl. PP.
Upon enquiry by this court, Ld. Addl. PP submits that the author
of the alleged forgery has still not been detected by the investigating agency
and yet IO has opted to conclude the investigation and file the chargesheet.
The dichotomous stand of the investigating agency is infact
baffling for this court. On the one hand, the anticipatory bail application is
opposed tooth and nail upto the level of Hon’ble Delhi High court on the
ground that sustained custodial interrogation is required to detect the author of
the alleged forgery and on the other hand once the anticipatory bail application
is dismissed, the IO opted to abandon a crucial aspect of the investigation;
regarding the author of the alleged forgery, and opts to conclude the
investigation qua the accused persons.
No reason, leave aside any palpable explanation, has been
brought to my notice by the IO regarding the change of his heart for his
benevolent attitude towards the accused persons.
This court is appreciative of its limited role during the hearing of
bail applications. It is also appreciative of the fact that this court cannot dictate
the mode and manner in which the investigation is required to be conducted by
the investigating agency. There also cannot be any quarrel with the proposition
that it is the discretion of the IO to arrest or not to arrest any individual.
However, this court cannot afford to remain oblivious of the fact that the
discretion vested in any public authority is to be exercised judiciously and
diligently towards identifiable objectives. The objective, in my humble
understanding of the subject, for any investigation is to ensure that no innocent
is unnecessarily harassed and at the same time no guilty person goes scot free.
It is really painful for this court that the IO in the instant matter seems to have
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lost sight of the pious duty, for the effective discharge of which law confers
upon him wide discretion. To track down the author of the alleged forgery is
one of the important aspect of the instant investigation. Solely on this ground
IO was seeking custodial interrogation of the accused persons however, he has
failed to apprise this court the reasons behind his Uturn for making an
endeavor to track down the author of the alleged forgery by interrogating the
accused persons in custody. What made him abandon the discovery of the
culprit midway is a cause of serious concern.
In these circumstances, I deem it appropriate that the matter
needs to be brought to the notice of the higher echelons of Delhi Police so as to
ensure proper remedial action in the instant matter. It is expected of the senior
officers that they shall properly sensitize their officers regarding the exercise of
discretionary powers vested in them and shall also ensure that a sincere
endeavour is made by the investigating agency to detect the author of the
alleged forgery. Copy of the instant order be accordingly sent to the worthy
Joint Commissioner of Police with a request to look into the matter personally.
It is further expected that the worthy Joint commissioner shall apprise this
court about the action initiated at his end to detect the author of the alleged
forgery. Reliance is placed upon the judgment of the Hon’ble Apex Court in the
matter of Saikiri Vasu v. State of U.P 2008 AIR (SC) 907 and Vinubhai
Haribhai Malaviya & Ors v. The State of Gujarat, Crl. Appeal nos. 478479
of 2017 decided on 16.10.2019.
At this juncture, Ld. Defence counsel Sh. S. K. Sharma points out
that an enquiry on the above said issue has already been conducted by the
concerned DCP and he has drawn my attention to the undated status report
filed before the Ld. Trial Court by the Ld. Addl. DCP.
It appears that the observations of this court have been
misconstrued as to if this court is miffed by the nonarrest of the accused/non
applicants. To put the matter straight, the issue is not of arrest or nonarrest of
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the accused persons, the issue is dereliction of the duties by the IO on a crucial
aspect of the investigation. For the sake of clarification, it is once again
reiterated that once a public functionary, repository of public faith and
confidence, decides to exercise discretionary powers, the action should be
backed by convincing reasons and sound principles. The whimsical or arbitrary
exercise of discretionary powers cannot be countenanced in any civilized
society governed by Rule of Law.
In the case at hand, neither any reason is discernible in the reply
filed by Addl. DCP nor any palpable reason is brought to my notice explaining
the reasons justifying the change of course of action by the IO and scuttling the
investigation midway, abandoning the quest regarding the author of the alleged
forgery.
In the matter of Mohd. Hakim v. State (NCT of Delhi), Crl. Appeal no.
170/2021 decided on 06.10.2021 it has been observed by Hon’ble High Court
of Delhi that :
“...Courts must not play coroner and attend to legal or constitutional
rights only after they are ‘dead’. Instead we must play doctor, and save
such rights from demise before they are extinguished. Courts should
proactively stepin to protect such rights from being stifled and buried.
If equity calls upon affected persons to be vigilant to protect their rights,
then surely the courts must also be vigilant, and, to quote the Hon’ble
Supreme Court, act as sentinels on the qui vive when it comes to
protecting constitutional and legal rights...”
Thus in these circumstances, I deem it appropriate to call a fresh status
report from the worthy Joint Commissioner of Police so that the reasons for
change of the heart of the concerned IO are available not only to the court but
even to the complainant, who though an important stakeholder in a criminal
trial, at times unfortunately, remains neglected.
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To come up for consideration of report of Joint Commissioner of
Police and for arguments in the matter on 27.04.2022.
Advance copy of the status report be shared with Ld. Defence
counsel well within time.
(Dharmender Rana)
Roster Judge
ASJ02, NDD/PHC/New Delhi
12.04.2022
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