Umesh Yadav vs State Of U.P. And Another
2015 Latest Caselaw 2618 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR	
 
Court No. - 36
 

 
Case :- APPLICATION U/S 482 No. - 29028 of 2014
 

 
Applicant :- 		Umesh Yadav
 
Opposite Party :- 	State Of U.P. And Another
 
Counsel for Applicant :- 	     Anoop Trivedi
 
Counsel for Opposite Party :- Govt. Advocate, S.P.S.Chauhan
 

 
Hon'ble Pramod Kumar Srivastava, J. 

1.This application under section 482 Cr.P.C. has been filed against the order dated 22.07.2014 passed by Additional Chief Judicial Magistrate, Court No.-9, Aligarh in Criminal Case No. 929/ 2013 by which application dated 21.07.2014 of accused for dropping the proceedings of the case was rejected.

2.In matter before the trial court, after investigation police has submitted charge-sheet against Umesh Yadav and others for offence punishable under sections 147, 148, 149, 307, 323, 504, 506 IPC in matter relating to case crime no. 5A/2007, of p.s. Kuarsi, district Aligarh. Then accused moved application for further investigation which was allowed. After the further investigation police had submitted its additional report, the finding of which was against the findings of earlier police report u/s 173(2) CrPC (charge sheet). Then defense side had moved application dated 21.07.2014 in which following prayer was made:-

3."That in view of law laid down in Vinay Tyagi's case, this Hon'ble Court may be pleased to consider the report under section 173(2) and drop the proceedings."

4.After affording opportunity of hearing to defense side, learned Magistrate had passed impugned order dated 22.07.2014 by which said application dated 21.7.2014 was rejected. This impugned order dated 22.07.2014 has been challenged in the present application under section 482 CrPC.

5.Sri Anoop Trivedi and Sri Vibhu Rai appearing on behalf of the applicants (accused of the original case) contended that trial court had not considered the ruling of Vinay Tyagi's case referred by the applicants. They also contended that since report of further investigation under section 173(8) is a closure report reflecting innocence of accused persons therefore proceeding of trial should have been dropped. Since the learned Magistrate has not appreciated the technicalities of the matter and passed impugned order therefore in the ends of justice court should exercise its inherent power for quashing the impugned order.

6.Sri S.P.S.Chauhan learned counsel for opposite party no.-2 contended that proceedings cannot be dropped on basis of supplementary report of closure submitted u/s 173(8) CrPC. He informed that charge-sheet has also been challenged earlier by the applicants in this Court through petition u/s 482 CrPC No. 15294/ 2009, which was dismissed. He also contended that there is no provision for dropping the proceedings of case in CrPC, and the ruling cited by applicant is not applicable in such matter. Therefore petition u/s 482 CrPC should be dismissed. Learned AGA had also contended that applicant has been misusing the process of court through repeated petitions u/s 482 CrPC.

7.I have heard the contention of the counsels for the parties and perused the record.

8.Section 173 CrPC deals wth "Report of police officer on completion of investigation". Its sub-section (8) reads as under:

"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

9.In Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 the Apex Court had held that :

" The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal:

Question 1

1.1. Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short "the Code"), the trial court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a court? If so, to what effect?"

"16. Once the court examines the records, applies its mind, duly complies with the requisite formalities of summoning the accused and, if present in court, upon ensuring that the copies of the requisite documents, as contemplated under Section 173(7), have been furnished to the accused, it would proceed to hear the case.

17. After taking cognizance, the next step of definite significance is the duty of the court to frame charge in terms of Section 228 of the Code unless the court finds, upon consideration of the record of the case and the documents submitted therewith, that there exists no sufficient ground to proceed against the accused, in which case it shall discharge him for reasons to be recorded in terms of Section 227 of the Code"

"51. - - - - The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. - - -"

"52. In light of the above discussion, we answer the questions formulated at the opening of this judgment as follows.

Answer to Question 1

53. The court of competent jurisdiction is duty-bound to consider all reports, entire records and documents submitted therewith by the investigating agency as its report in terms of Section 173(2) of the Code. This rule is subject to only the following exceptions:

(a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof;

(b) Where an order is passed by the higher courts in exercise of its extraordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on "fresh investigation" or "reinvestigation" or any part of it be excluded, struck off the court record and be treated as non est."

10.Interpreting the scope of section 173(8) CrPC the Apex Court had held in Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361 as under:

"All that has to be done at that stage is to look into the materials already on record and either frame charge, if a prima facie case is made out, or discharge the accused bearing in mind relevant provisions relating to the same incorporated in Chapter XVII of the Code, titled "The Charge". Of course, the discharge would not prevent further investigation by police and submission of charge-sheet also thereafter, if a case for the same is made out."

11.Thus it is explicitly clear that neither section 173(8) CrPC nor ruling of Apex Court in case of ''Vinay Tyagi' (supra) directs that if any report against the already submitted charge sheet has been filed in court after ''further investigation' then the court has to consider it along with other documents. Such report had no effect of automatic dropping the proceedings of the case. Therefore submission of learned counsel for the applicant in this regard is rejected.

12.If the applicant has feeling that by impugned order trial court had acted illegally or improperly, then it should have tried to invoke the revisional jurisdiction of the court. The powers u/s 482 should not be exercised in such matters. Section 482 CrPC reads as under:

"482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

13.In Shiji v. Radhika, (2011) 10 SCC 705 the Apex Court had held that :

" That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. - - - - - The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. - - - - - The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code."

14.In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 the Apex Court had held that :

"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. - - - - While exercising powers under the section, the court does not function as a court of appeal or revision."

15.In ruling Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 cited by applicant side Apex Court had held that :

"28. The next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct "further investigation" or "fresh investigation". As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct "fresh" or "de novo" investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is filed to wipe out the report and its effects in law."

16.In Umesh Kumar v. State of A.P., (2013) 10 SCC 591 the Supreme Court had held:

"20. The scope of Section 482 CrPC is well defined and inherent powers could be exercised by the High Court to give effect to an order under CrPC; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the Court cannot look into materials, the acceptability of which is essentially a matter for trial."

17.On the basis of above discussion and the provisions of Code of Criminal Procedure it is clear that if the Magistrate receives a charge-sheet and take cognizance of offence, and thereafter he receives any such report under section 173(8) CrPC, in that case he has to study such report and other documents and then proceed in accordance with provisions of section 227 and 228 CrPC. In case when offence in charge-sheet appears to be one triable exclusively by the court of sessions, in such case Magistrate had no option but to commit the case to court of sessions, which will have to proceed in accordance with provisions of section 227 or 228 CrPC.

18.There is no provision in code of criminal procedure to review order passed on merits. Learned Magistrate had rightly held in impugned order that his earlier order of taking cognizance cannot be reviewed. There is no error or illegality in impugned order. As discussed above, in any case there is no sufficient ground for exercising the powers under section 482 CrPC in present matter. The ruling of ''Vinay Tyagi (supra)' cited by accused-applicant does not indicate any such view that after filing of the charge-sheet and taking of cognizance of offence the proceding of any case may be dropped on basis of police report of further investigation u/s 173(8) CrPC. On the other hand interfering in impugned order may have effect of abuse of process of court, because in that case competent trial court would be deprived to use its legal power to determine on basis of available evidences collected during investigation. Trial court had power to consider as to whether on basis of police reports, u/s 173(2) and/or 173(8) CrPC, there are sufficient grounds to frame charge or to discharge accused or not. Therefore present petition u/s 482 CrPC is devoid of any merit and is hereby dismissed. Interim order passed in this case is vacated. The accused-applicant is directed to appear before the trial Court.

Date: 24.09.2015

SKS