Sanjay Dubey v. The State of Madhya Pradesh and

939[2023] 4 S.C.R. 939 SANJAY DUBEY v. THE STATE OF MADHYA PRADESH AND ANOTHER (Criminal Appeal No. 1466 of 2023) MAY 11, 2023 [KRISHNA MURARI AND AHSANUDDIN AMANULLAH, JJ.] Constitution of India – Articles 226, 227 – Power o f High Court to issue additional directions/orders in bail pleas – F IR was filed against accused u/ss.376, 506, IPC; POCSO Act , SCST Act and IT Act –FSL Report was forwarded to the appella nt-Inspectorwith a note that DNA examination as per gu idelines be undertaken however, the DNA examination was not carr ied out – In the meantime, the accused filed his bail plea – High Courtc alled for the case-diary, but the FSL Report was not included therew ith – Appellant was found guilty of dereliction of dutyan d direction wasissued for holding departmental proceedings against him – On appeal, held: High Court is a Constitutional Courtpossessin g wide repertoire of powers – It has original, appellate and suo motu powers u/Articles 226 and 227 which are meant for taking care of situat ions where the High Court feels that some direction(s)/o rder(s) are required in the interest of justice – However, in t he present case, since the Superintendent of Police, the officer sup erior to the appellant had himself stated that he would take action a gainst the appellant and was initiating enquiry for imposition of maj or penalty, therefore, there was no occasion for the High Court to furt her issue direction for action against the appellant –However,since t he case is sensitive and prima facie there was callousness on the part of the police officer(s) concerned, including the appellant, in conducting a proper investigation,on facts, the impugned judgment not interfered with–Code of Criminal Procedure, 1973 – s.439 – Penal Code, 1860 –ss.376, 506 – Protection of Children from Sexual O ffences Act, 2012– Scheduled Castes and the Scheduled Tribes (Pr evention of Atrocities) Act, 1989 – Information Technology Act, 200 0. Administration of Justice–Administration of CriminalJ ustice –Significance of investigation – Discussed. Practice and Procedure – Judgments – Interpretation of –

Held: Judgments are not to be read as Euclid’s theorems –The y are not to be construed as statutes andspecific cases a re authorities only for what they actually decide. Sangitaben Shaileshbhai Datanta v State of Gujarat

(2019) 14 SCC 522; State Represented by Inspector of Police v M Murugesan (2020) 15 SCC 251 : [2020] 2 SCR 553 – distinguished. B S Hari Commandant v Union of India 2023 SCC OnLine SC 413; Sidhartha Vashist v State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103; Manoj v State of Madhya Pradesh (2023) 2 SCC 353; State of Gujarat v Kishanbhai (2014) 5 SCC 108 : [2014] 1 SCR 197– relied on . Sreenivasa General Traders v State of Andhra Pradesh ,

(1983) 4 SCC 353 : [1983] 3 SCR 843; M/s Amar Nath Om Prakash v State of Punjab (1985) 1 SCC 345 : [1985] 2 SCR 72; BGS SGS Soma JV v NHPC Limited

(2020) 4 SCC 234 : [2019] 17 SCR 742; Chintels India Limited v Bhayana Builders Private Limited (2021) 4 SCC 602– referred to. Case Law Reference [2020] 2 SCR 553 distinguished Para 8 [1983] 3 SCR 843 referred to Para 18 [1985] 2 SCR 72 referred to Para 18 [2019] 17 SCR 742 referred to Para 18 [2010] 4 SCR 103 relied on Para 22 [2014] 1 SCR 197 relied on Para 23 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1466 of 2023. From the Judgment and Order dated 21.09.2022 of the High Court of Madhya Pradesh, Principal Seat at Jabalpur in MCRC No. 43998 of 2022. Siddhartha Dave, Sr. Adv., Awanish Kumar, Siddharth Kumar Sharma, S. K. Pandey, Chandrashekhar A. Chakalabbi, Anshul Rai, M/ s. Dharmaprabhas Law Associates, Advs. for the Appellant . Mukul Singh, A.A.G., Mrinal Gopal Elker, Rajan Chourasia, Advs. for the Respondents. The Judgment of the Court was delivered by

AHSANUDDIN AMANULLAH, J. Heard learned senior counsel/counsel for the parties.

¶2Leave granted.

¶3The present appeal is directed against the Judgment and Order dated 21.09.2022 (hereinafter referred to as the “Impugned Judgment”) rendered by a learned Single Bench of the High Court of Madhya Pradesh at Jabalpur (hereinafter referred to as the “High Court”) in MCRC No. 43998 of 2022, in which a finding, albeit prima facie, of being guilty of dereliction of duty against the appellant has been recorded. Further, it was observed in the Impugned Judgment that the appellant is not fit to be assigned any important responsibility in the Police Department and is unfit to hold any responsible post. It has further been noted th at the Superintendent of Police, Katni had already line-attached the appellant and was initiating enquiry for imposition of major penalty, for which he would get conducted a preliminary enquiry by the Ad ditional Superintendent of Police and forward the report to the Discipl inary Authority for imposition of a major penalty.

¶4The Impugned Judgment also records a ‘direction’ issued to take appropriate action against the appellant for dereliction of duty, insubordination and causing undue disruption in the proceedings of the High Court. THE FACTUAL PRISM:

¶5The Appellant was an Inspector of Sleemanabad Police Station, Katni where FIR No. 424 of 2021 dated 18.07.2021 was registere d against the accused therein, one Shiv Kumar Kushwah (herei nafter referred to as the “accused”) under Sections 376 & 506 of the Indi an Penal Code, 1860 (hereinafter referred to as the “IPC”), Sections 3 and 4 of the Protection of Children from Sexual Offence s Act, 2012 (hereinafter referred to as the “POCSO Act”), Sections 3(1)(W)(ii) and ANOTHER 3(2)(V) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 67 and 67A of the Informa tion Technology Act, 2000. The Forensic Science Laborato ry Report (hereinafter referred to as the “FSL Report”) was forwa rded to the office of the Superintendent of Police, Katni on 25.10.2021. The F SL Report was forwarded to the appellant with a note that DNA examination as per guidelines be undertaken. However, the DNA examinati on was not carried out. In the meantime, the accused filed MCRC No.43998 of 2022 seeking bail before the High Court.

¶6During the proceedings, the High Court called for the c ase-diary, but the FSL Report was not included therewith. This led the High Court to seek the personal appearance of the Superintendent of Police, Katni and the In-charge of the Regional Forensic Science Lab oratory, Jabalpur. On 21.09.2022, the duo mentioned supra appeared before the High Court, and informed that the FSL Report was sent to the office of Superintendent of Police, Katni on 25.10.2021. The Superintendent of Police, Katni stated that the FSL report was forwarded to the appellant along with communication dated 27.10.2021, with a note that DNA examination as per guidelines be carried out. However, the same was not done, as the appellant took the stand that the concerned Woma n Sub-Inspector had not brought the FSL Report to his knowledge.

¶7The learned Government Advocate for the State stated before the High Court that the case-diary had been received in t he Office of the learned Advocate General on 13.09.2022, but the FSL Report w as not included therewith. This prompted the High Court to p ass the Impugned Judgment, as discussed above. SUBMISSIONS BY THE APPELLANT:

¶8Learned senior counsel for the appellant submitted that the accused had filed MCRC No.43998 of 2022 under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter refer red to as the “Code”), which only relates to grant of bail to an accused in custody. Thus, the direction to take action and hold a departmental e nquiry as also the recording of finding against the appellant cannot be sustained. In support of his contention, learned counsel referred to and relied upon the decisions of this Court in Sangitaben Shaileshbhai Datanta v State of Gujarat, (2019) 14 SCC 522 and State Represented by Inspector of Police v M Murugesan , (2020) 15 SCC 251 . It was contended that no matter how laudable the object, while deciding an application for bail, the Court cannot enter into any other realm. SUBMISSIONS OF THE RESPONDENT-STATE:

¶9Per contra, learned counsel for the State submitted that the appellant had, clearly, exhibited insubordination, incompetence and, dereliction of duty in an important matter and thus, in any way , was liable to be proceeded against. It was submitted that the De partmental Committee concerned had also conducted an enquiry where the appellant and some other officials were found negligent in performing their duties in providing the FSL Report along with the case-diary besides suppressing material documents. Learned counsel added that due to an interim stay apropos the departmental proceedings against the appellant, granted vide Order dated 23.11.2022, the matter could not be taken to its logical end. ANALYSIS, REASONING AND CONCLUSION:

¶10Having given the matter our anxious and thought ful consideration, though the appellant may have a point that, stricto sensu, in a petition under Section 439 of the Code, the concerned Court ought not to travel beyond considering the specific issue viz. whether to grant bail or reject bail to an accused in custody, it cannot be lost sight of that the Court concerned herein was not a ‘Court of Session’ b ut the High Court for the State of Madhya Pradesh, established under Article 214 of the Constitution of India (hereinafter referred to as the “Constitution”).

¶11This singular fact, for reasons elaborated hereinafter, leads us to decline interfering with the Impugned Judgment, but for dif ferent reasons. We have no hesitation in stating that had the Impugned Judgment been rendered by a Court of Session, the factors that would have weighed with us would be starkly different.

¶12A little digression is necessitated. The High Co urt is a Constitutional Court, possessing a wide repertoire of powers. The High Court has original, appellate and suo motu powers under Articles 226 and 227 of the Constitution. The powers under Articles 226 and 227 of the Constitution are meant for taking care of situations where the High Court feels that some direction(s)/order(s) are required in the interest of justice. Recently, in B S Hari Commandant v Union of India , 2023 SCC OnLine SC 413, the present coram had the occasion to hold as under: “50. Article 226 of the Constitution is a succour to remedy injustice, and any limit on exercise of such power, is only self-imposed. Gainful refer- ence can be made to, amongst others, A V Venkateswaran v. Ramchand Sobhraj Wadhwani,

(1962) 1 SCR 573 and U P State Sugar Corporation Ltd. v. Kamal Swaroop Tandon, (2008) 2 SCC 41. The High Courts, under the Constitutional scheme, are endowed with the ability to issue prerogative writs to safeguard rights of citizens. For ex-actly this reason, this Court has never laid down any strait-jacket principles that can be said to have “cribbed, cabined and confined” [to borrow the term employed by the Hon. Bhagwati, J. (as he then was) in E P Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : AIR 1974 SC 555] the extraordinary powers vested under Arti-cles 226 or 227 of the Constitution. Adjudged on the anvil of Nawab Shaqafath Ali Khan (supra), this was a fit case for the High Court to have examined the matter threadbare, more so, when i t did not involve navigating a factual minefield. ” (emphasis supplied)

¶13Returning to the present case, though usually the proper course of action of the High Court ought to have been to confine itself to the acceptance/rejection of the prayer for bail made by the a ccused under Section 439 of the Code; however the High Court, being satisfi ed that there were, in its opinion, grave lapses on the part of the police/ investigative machinery, which may have fatal consequences on the justice delivery system, could not have simply shut its eyes.

¶14We are of the view that the learned Single Bench could have directed institution of separate proceedings taking recourse t o Article 226 of the Constitution, after formulating reasons and points for consideration. Thereafter, the matter should have been refe rred to the learned Chief Justice of the High Court for placing it before an appropriate Bench, which would proceed in accordance with law, of course, after affording adequate opportunity to the person(s) proceeded against.

¶15With regard to the High Court’s justified concern to prevent miscarriage of justice, separate/fresh proceedings could have been instituted as indicated above. We hasten to add that our observations are not to be construed to imply that the High Courts should delve into the efficacy of investigation at the stage of bail, and the present judgment is not to be misread to haul up the investigative agencies/ officers in all cases.

¶16This Court could have interfered with the ‘direction ’ for departmental proceedings against the appellant, as learned c ounsel for the appellant advanced, had been so done in Sangitaben Shaileshbhai Datanta (supra) and M Murugesan (supra). However, it would be proper to take note that in the aforesaid two cases, the factual positions were quite different. In Sangitaben Shaileshbhai Datanta (supra), the Court took note of the fact that in the case involving rape of a minor, the High Court ordering the accused and the appellant therein, who was the grandmother of the victim along with parents of the victim to undergo scientific tests viz. lie detection, brain-mapping and narco-analysis was not only in contravention of the first principles of criminal law jurisprudence but also a violation of statutory requirements and thus, the bail granted to the accused was cancelled. The facts of the instant case are quite different, and ergo, Sangitaben Shaileshbhai Datanta (supra) does not aid the appellant.

¶17In M Murugesan (supra), it was noted that the jurisdiction of High Court is limited to grant or refuse to grant bail pending trial and such jurisdiction ends when the bail application is finally decided. In this background, the High Court, after taking a decision on the bail application, having retained the file and directing the State to constitute a Committee and seek its recommendation on reformation, rehabilitation and re-integration of convicts/accused persons and best practices for improving the quality of investigation and also to obtain District-wise data from State and upon submission of final data, after reviewing the same, making such data a part of the order after decision on bail application, was held to be beyond jurisdiction. In the present case, on the date of passing of the Impugned Judgment, the bail application was still at large, and had not yet been decided one way or the other.

¶18There is no quibble with the propositions lucidly enunciated in Sangitaben Shaileshbhai Datanta (supra) and M Murugesan (supra). Yet, as our discussions in the preceding paragraphs displa y, the same are inapplicable to the extant factual matrix. It is too well-settled that judgments are not to be read as Euclid’s theorems; they ar e not to be construed as statutes, and; specific cases are authorities onl y for what they actually decide. We do not want to be verbose in reproducing the relevant paragraphs but deem it proper to indicate some authori ties on this point – Sreenivasa General Traders v State of Andhra Pradesh ,

(1983) 4 SCC 353 and M/s Amar Nath Om Prakash v State of Punjab,

(1985) 1 SCC 345 – which have been reiterated, inter alia, in BGS SGS Soma JV v NHPC Limited , (2020) 4 SCC 234 , and Chin-tels India Limited v Bhayana Builders Private Limited , (2021) 4 SCC

602.

¶19In the present case, the judgment impugned was passed before the final disposal of the bail application by the High Court. On a closer scrutiny of the judgment impugned, it is clear that the Superintendent of Police, Katni, while appearing in person on 21.09.2022 had submitted that he had already line-attached the appellant vide an order dated

20.09.2022 and was initiating enquiry for imposition of major penalty. The High Court was informed that the Superintendent of Police, Katni would “ get conducted preliminary enquiry in the hands of t he Additional S.P. and forward the report to the disciplinary authorit y of the T.I.to initiate inquiry for major penalty. ”

¶20The aforenoted was only reiterated by the High Court in the latter portion of the judgment impugned, in the following terms: “Let DNA report be now produced within a period of th ree weeks by the concerned Officer for which Superintende nt of Po-lice, Katni shall personally monitor that sample is sent i n time to the concerned DNA Testing Laboratory and report is ob-tained besides taking appropriate action against the concerned T.I. Shri Sanjay Dubey for dereliction of duty, insubordi- nation and causing undue disruption in the proceedings of the High Court. ” (sic) (emphasis supplied)

¶21A combined reading of the afore-extracted snippets makes it crystal clear that the Superintendent of Police, Katni, who was the officer superior to the appellant, himself had stated that he would tak e action against the appellant and was initiating enquiry for imposition of major penalty, which statement was a suo motu act and not upon or flowing from any direction of the Court. Therefore, there was no occasi on for the High Court to further observe for action against the appellant to be taken, as already, the Superintendent of Police, Katni had taken a decision to initiate enquiry against the appellant for imposition of major penalty.

¶22Be that as it may, the facts of the case prima facie disclose that in such an important and sensitive case, there had been, at least prima facie, callousness on the part of the police officer(s) concerned, including the appellant, in conducting a proper investigation to bring on record all relevant materials in support of the truth. Amidst such backdrop, the chances of undue benefit accruing to the accused , leading to miscarriage of justice, cannot be ruled out, and may, i n fact, have increased. The significance of the investigative component cannot be emphasised enough, and the views of this Court on such aspect h ave been brought to the fore in Sidhartha Vashist v State (NCT of Delhi),

(2010) 6 SCC 1 and Manoj v State of Madhya Pradesh , (2023) 2 SCC 353 .

¶23In this connection, on a slightly different but connected context, it would be apposite to refer to the judgment in State of Gujarat v Kishanbhai, (2014) 5 SCC 108, wherein the Court opined and directed as under: “22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all order s of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior offi cers of the police and prosecution departments, should be vested with the aforesaid responsibility. The consideration at the hands of the above Committee, should be utilized for crysta llising mistakes committed during investigation, and/or prose cution, or both. The Home Department of every State Governm ent will incorporate in its existing training programmes for j unior investigation/prosecution officials course-content drawn from the above consideration. The same should also const itute course-content of refresher training programmes for senior investigating/prosecuting officials. The above resp onsibility for preparing training programmes for officials, sh ould be vested in the same Committee of senior officers ref erred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the cas e), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above Committee annually, on the basis of fresh inputs, i ncluding emerging scientific tools of investigation, judgments of c ourts, and on the basis of experiences gained by the Stand ing Committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above train ing programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concer ning investigation/prosecution are fully trained to handle the sa me. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses. ” (emphasis supplied)

¶24While respectfully reiterating the above, drawing an analogy therefrom, as the lapses are grave, and additionally, but importantly, the factum that the authority viz. the Superintendent of Police, Katni, itself realised lapses had crept into the investigation, and decide d to initiate proceedings against the appellant (and others), the operative portion of the judgment impugned by the High Court, becomes, merely reiterative, perhaps in more direct terms, of what had been stated befor e it. As such, purely, in the extant facts and circumstances , the Impugned Judgment does not warrant any interference by this Court. We propose no order as to costs.

¶25In sum, on an overall circumspection, and in view of the discussion in the preceding paragraphs, the instant ap peal deserves to be, and is, dismissed, with the caveat that the High Court’s observations are not to be treated as findings against the appellant.

¶26Interim order dated 23.11.2022, in the present case, is vacated. However, it is made clear that any observation(s) made b y the High Court in relation to the appellant in the judgment impugned sha ll not cause any prejudice to him in the departmental proceedings, which shall take its own course, in accordance with law, and after providing full and effective opportunity to the appellant.

¶27The appellant would be entitled to raise all gr ounds and contentions, as may be available to him, in facts a nd law, in the departmental proceedings. Our observations aforesai d, equally, will not prejudice the appellant, nor shall they be used against the accused. Divya Pandey Appeal dismissed. (Assisted by : Shevali Monga, LCRA)