Satish And Ors. vs State Of U.P. And Anr.
2021 Latest Caselaw 1160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- MISC. SINGLE No. - 26178 of 2020
 

 
Petitioner :- Satish And Ors.
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Petitioner :- Jay Prakash Singh,Deepak Kr. Vishwakarma,Ravindra Sharma
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Ravindra Sharma, learned counsel for the petitioners as well as learned Additional Government Advocate for the State of U.P.

2. By means of present writ petition the petitioners have challenged the order dated 11.11.2020, passed by the Additional District & Sessions Judge, Sultanpur passed in Criminal Revision No. 353 of 2018 - Satish and 5 Others Vs. State of U.P. and Another, whereby the revision preferred by the petitioner was rejected. Aforesaid revision was preferred against the order dated 14.08.2018, passed by the Chief Judicial Magistrate, Sultanpur in Criminal Case No. 3421 of 2011 - State Vs. Khemai and Others, whereby the application of the petitioners for dropping their names was rejected.

3. It is submitted by learned counsel for the petitioners that first information report was lodged on 26.06.2005, under Sections 304-B, 498-A, 504, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station - Chanda, District - Sultanpur, upon direction by the Magistrate on an application moved under Section 156(3) Cr.P.C. After investigation, charge sheet was filed in the Court on 02.03.2006, upon which cognizance was taken by the Court on 23.03.2006.

4. At the time of taking cognizance the petitioners has been summoned. The petitioners appeared before the Magistrate and moved an application under Section 173(8) Cr.P.C. seeking direction for further investigation. Subsequently, further investigation was conducted as per order of the Magistrate by the CBCID and a report was filed in the Court on 21.10.2006, wherein the investigating agency did not find the accused to be guilty of the offences charged with.

5. In the light of the aforesaid developments, the petitioners moved an application for dropping of the proceedings, stating that now the cognizance can be taken only on the subsequent report furnished by the CBCID, wherein the petitioners have not been found to be involved in any of the offences they are charged with. Learned Magistrate by means of order dated 14.08.2018, rejected the application of the petitioners for dropping of proceedings and issued non bailable warrants against them.

6. While rejecting the aforesaid application it has been observed by the Chief Judicial Magistrate, Sultanpur that cognizance in this matter has already been taken on the basis of charge sheet filed by the Police wherein prima-facie case was found against the petitioners and as the matter is triable by the Sessions, therefore, at this stage he had no jurisdiction for deciding such an application and rejected the application.

7. The aforesaid order was assailed before the Additional District and Sessions Judge, Sultanpur, who rejected the revision preferred by the petitioners by means of order dated 11.11.2020, which has been impugned in the present proceedings, it was held that the charge sheet has already been filed against the accused and on the basis of the charge sheet due cognizance has also been taken by the Magistrate and now the matter can only be decided on merits of the case and therefore, the Additional District and Sessions Judge, upheld the order passed by the Chief Judicial Magistrate.

8. Against the aforesaid orders, learned counsel for the petitioners has vehemently submitted that in pursuance to the application under Section 173(8) Cr.P.C., further investigation was directed and in pursuance thereof after investigation Police report was submitted in the Court whereby the petitioners have been found not guilty of the offences charged against them and therefore, he submits that the petitioners should not be prosecuted in the light of the material collected during further investigation.

9. Learned Additional Government Advocate on the other hand opposed the petition by submitting that there is no error in the impugned orders. He has submitted that after due investigation charge sheet was filed in the Court and cognizance was taken by the Magistrate whereby the accused were summoned. On their appearance before the Court they have moved an application for further investigation and on the order of Magistrate, further investigation was conducted by the CBCID and a Police report was submitted which exculpated the accused persons. He further submits that once charge sheet has been filed against the accused persons and cognizance taken, then on the basis of supplementary Police report proceedings against the accused persons cannot be dropped. The further investigation report which has been submitted by the CBCID is infact a Police report which can be duly considered by the Magistrate at the time of framing of charges and further material.

10. Heard learned counsel for the parties and perused the record.

11. In the opinion of this Court, once cognizance has been taken, it has rightly been held by the Chief Judicial Magistrate as well as learned Additional District and Sessions Judge that according to Criminal Procedure Code a person can only be discharged, acquitted or convicted. There is no provision which can be shown by learned counsel for the petitioners where after favourable report has been filed subsequently by the Police, the proceedings have been dropped.

12. Under Section 173(8) Cr.P.C. only further investigation can be ordered by the Magistrate, which in additional to the charge sheet already submitted in the Court, on which cognizance has been taken. The Police report filed in pursuance to the further investigation under Section 178 Cr.P.C. would be in the nature of an additional material before the Court which no doubt has to be adequately considered at the time of framing of charges. The petitioners approached the Court for dropping of proceedings merely on the basis of second Police report. Nature of the application preferred by the petitioners is not envisaged and therefore has been rightly rejected by the Magistrate as well as the Additional District and Sessions Judge.

13. Needless to say that the second Police report will be liable to receive adequate and due consideration by the Magistrate at the stage of framing of charges and therefore, at this stage I do not find any infirmity with the orders impugned in this writ petition.

14. Hon'ble Supreme Court in Criminal Appeal Nos. 22-23 of 2014 - State of Tamilnadu Vs. N. Suresh Rajan and Others, at page 26 of the judgment has held that :

"It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence."

15. Further the Apex Court in Appeal (Crl) No. 1716 of 2007 - Onkar Nath Mishra and Others Vs. State (NCT of Delhi) and Another (decided on 14.02.2007), in para 11 of the judgment has held :

"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients."

16. In view of the discussion made above as well as the case law discussed, I do not find any merit in the case. Accordingly, the petition stands dismissed.

17. Lastly, learned counsel for the petitioners vehemently prayed that the petitioners may be permitted to move discharge application. In this regard it is clear that there is no order restraining the petitioners from moving discharge application, if so advised, the petitioners will be at liberty to move appropriate application before the Court concerned.

Order Date :- 20.1.2021

A. Verma

(Alok Mathur, J.)