Umesh Chandra Chauhan vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 6685 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- U/S 482/378/407 No. - 2112 of 2021
 

 
Applicant :- Umesh Chandra Chauhan
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home,Lucknow & Ors.
 
Counsel for Applicant :- Bajhul Quamar Siddiqui
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Singh,J.

The Court convened through video conferencing.

Heard learned counsel for the applicant and learned A.G.A.

This application under Section 482 Cr.P.C. has been filed for quashing the charge-sheet No.01 of 2019, dated 05.06.2019 filed in Case Crime No.392 of 2018, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Purwa, District Unnao as well as summoning order dated 03.02.2020 passed by Judicial Magistrate, Purwa, Unnao in Criminal Case No.93 of 2020.

Learned counsel for the applicant has submitted that there is a civil dispute in between the parties. He further submitted that opposite party No.2 filed a civil suit for permanent injunction in the Court of Civil Judge, which was registered as Suit No.152 of 2015 and he could not succeeded in the aforesaid suit, then FIR in question was lodged on 27.09.2018 against the applicant. He further submitted that all these facts were not considered in the investigation.

Learned A.G.A. has opposed the prayer of applicant and submitted that as the case developed by the learned counsel for the applicant reveals that there is a fault in the investigation, therefore, his defence cannot be examined in the present application.

It is undisputed that Para-107 of U.P. Police Regulation provides that it is the duty of the Investigating Officer to find out the truth and not merely to obtain convictions, he must always give opportunities to accused persons for producing defence evidence before him and must consider such evidence carefully if produced. An Investigation Officer is not to regard himself as a mere clerk for the recording of statements. It is his duty to observe and to infer. The para 107 of U.P. Police Regulation is as under:-

"107. An investigating officer is not to regard himself as a mere clerk for the recording of statements. It is his duty to observe and to infer. In every case he must use his own expert observations of the scene of the offence and of the general circumstances to check the evidence of witnesses, and in cases in which the culprits are unknown to determine the direction in which he shall look for them. He must study the methods of local offenders who are known to the police with a view to recognising their handiwork, and he must be on his guard against accepting the suspcisions of witness and complainants when they conflict with obvious inferences from facts. He must remember that it is his duty to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt a evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. Burglary investigations should be conducted in accordance with the special orders on the subject."

In the case of T.C. Thangaraj vs. V. Engammal and others reported in 2011 (12) SCC 328, Hon'ble Supreme Court held that the Magistrate can direct the Police to carry out the investigation properly and can monitor the same. The Para 12 of the judgment is as under:-

"12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same."

In the case of Sudhir Bhaskar Rao Tambe vs. Hemand Yashwant Dhage and others, reported in 2016 (6) SCC 277, the Apex Court also held that the Magistrate can monitor the investigation and the parties may produce any material they wish before the Magistrate concerned. The Paras 2 to 4 of the judgment are held as under:

"2. This Court has held in Sakiri Vasu v. State of U.P. & Others, reported in AIR 2008 SC 907, that if a person has a grievance that his F.I.R. has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the concerned Magistrate under Section 156(3), Cr.P.C. If such an application under Section 156(3), Cr.P.C. is made and the Magistrate is, prima facie, satisfied, he can direct the F.I.R. to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the Investigating Officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasus case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate under Section 156(3), Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

4. In view of the settled position in Sakiri Vasus case (supra), the impugned judgment of the High Court cannot be sustained and is hereby set aside. The concerned Magistrate is directed to ensure proper investigation into the alleged offence under Section 156(3), Cr.P.C. and if he deems it necessary, he can also recommend to the S.S.P./S.P. concerned change of the Investigating Officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the concerned Magistrate. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."

In the case of Vinubhai Haribhai Malviya & others vs. State of Gujarat and another reported in 2019 (17) SCC 1 held that a fair and just investigation of a criminal case comes in the purview of Article 21 of the Constitution of India, therefore, under the provisions of Section 156(3) r/w Section 156(1), Section 2(h) and Section 173(8) of Cr.P.C. all powers are available to Magistrate to ensure proper investigation in the matter in the sense of fair and just investigation by police by directing further investigation either on the request of complainant or alleged accused. This power can also be exercised suo moto by Magistrate himself, depending on the facts of each case. The Paras 42 and 43 of the judgment are held as under:-

"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid- way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.

43. We now come to certain other judgments that were cited before us. King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, was strongly relied upon by Shri Basant for the proposition that unlike superior Courts, Magistrates did not possess any inherent power under the CrPC. Since we have grounded the power of the Magistrate to order further investigation until charges are framed under Section 156(3) read with Section 173(8) of the CrPC, no question as to a Magistrate exercising any inherent power under the CrPC would arise in this case."

Considering the provision of Section 156 (3) read with Section 156 (1), Section 2 (h), Section 173 (8) Cr.P.C., para 107 of U.P. Police Regulation and law laid down by the Hon'ble Supreme Court in the case of T.C. Thangaraj vs. V. Engammal and others (supra), Sudhir Bhaskar Rao Tambe vs. Hemand Yashwant Dhage and others (supra) and Vinubhai Haribhai Malviya & others vs. State of Gujarat and another (supra), applicant/accused may move application before the court below for his grievance within six weeks from today. In case, any such application is moved, then the same shall be decided expeditiously by means of a reasoned and speaking order.

Till the disposal of the application of the applicant, no coercive steps shall be taken against him.

Accordingly, the application is disposed of.

The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 28.6.2021

Amit/-