MP High Court Directs Immediate Transfer Of Head Constable Accused Of Rape For Manipulating Probe

Justice Gurpal Singh Ahluwalia in his order observed, “…it is clear that applicant is still playing an influential role and is trying very hard to manipulate investigation. When there is serious allegation of rape against applicant, it was expected from the Police that it should have acted in a free and fair manner, but unfortunately they have miserably failed to discharge their duties and applicant is still playing a dominating role in manipulating the investigation. Under these circumstances, the Competent Authority or Director General of Police is directed to immediately transfer applicant to another part of the State so that he may not influence the ongoing investigation. The Competent Authority may also consider to take action against applicant under Rules 9 and 14 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. The interim order dated 03.01.2019 is hereby vacated. Police is free to take applicant in custody.”

The petitioner had filed a plea seeking quashing of the FIR. As per the factual matrix of the case, the prosecutrix had alleged that she was raped by the petitioner Head Constable in January 2018 but police did not lodge the FIR.

Thereafter, the daughter of petitioner lodged an FIR against husband of the prosecutrix alleging eve-teasing in February 2018. An enquiry was conducted by concerned Sub-Divisional Officer  who in his report certified that the allegations made by prosecutrix regarding commission of rape are false. Thereafter, Additional SP in his inquiry report also gave clean chit to the petitioner.

Both these reports were never placed before the Magistrate for judicial scrutiny and were probably retained by the police department. Thereafter, the Collector, Ashok Nagar sent a letter to the Superintendent of Police, Ashok Nagar along with the report of Woman Empowerment Officer and the opinion of the Additional District Magistrate, Ashok Nagar, for action in accordance with law. Thus, a FIR was lodged in December 2018 under Section 376 (rape) IPC. 

Referring to a catena of judgements, the Court opined that when the Police comes to a conclusion that the complaint made by the complainant appears to be false, then it has to forward a copy of said finding to the complainant and is also required to forward the report to the Magistrate under Section 169 Cr.P.C./189 of BNSS.

The Court referred to Section 157 of Cr.P.C which gives a complete check to the unfettered powers of police. “In case if the Police is allowed to close the preliminary enquiry at its own level, then it would give unfettered powers to the police and the opinion formed by the Police would always remain unchallenged. For example, if the Police is not interested in registering a case against a person, then instead of registering an FIR it would take up the matter in preliminary enquiry and then after forming its own opinion would keep the enquiry report with itself and would not send it to the Magistrate for judicial scrutiny. That would lead to dictatorship of the Police”, the Court said.

The Court noted that none of the inquiry reports were provided to the complainant. In fact, both the officers provided the inquiry reports to the petitioner. 

The Court noted that the petitioner had filed the copies of the enquiry reports submitted by the SDO and Additional S.P. but those enquiry reports have not been issued under Right to Information Act.

“Thus, it is clear that applicant who is posted as Head Constable had easy access to the enquiry report which otherwise should not have been shared by Superintendent of Police, Ashok Nagar with applicant.”, the Court observed.

Thus, the Court opined that the contention of counsel for Complainant that the applicant was playing an influential role in Police Station cannot be ruled out.

With regard to the contention of applicant that FIR in question was lodged by way of counterblast to the FIR lodged by the daughter of applicant is concerned, the Court said, “Under the facts and circumstances of the case, this Court is of considered opinion that it appears that in fact the FIR lodged by the daughter of applicant was by way of counterblast in order to put pressure on the prosecutrix.”

The Court opined that the police was trying to support applicant by delaying lodging of the FIR only on the ground that mother of complainant was not present.

“Thus, Police has assigned false reason for delay in lodging FIR and also tried to support applicant because the delay of approximately 12 months in lodging the FIR merely on the ground that mother of complainant was not present, cannot be said to be plausible explanation. In fact, it was Police Station Ishagarh, District Ashok Nagar which was out and out to suppress the voice of complainant and the complainant was running from pillar to post,” the Court said.

The Court further noted that the applicant was directed to appear for collection of blood sample but he did not co-operate.

Thus, the Court concluded that the applicant was trying to influence and manipulate the investigation. Therefore, the Court directed the DGP to immediately transfer applicant to another part of the State so that he may not influence the ongoing investigation.

The application was hence, dismissed.

Case Title: Prakash Pawaiya Versus The State Of Madhya Pradesh And Others, Misc. Criminal Case No. 50860 Of 2018