Nitesh Kumar Verma vs State Of U.P. & Another
2021 Latest Caselaw 11345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 14
 

 
Case :- U/S 482/378/407 No. - 3589 of 2018
 

 
Applicant :- Nitesh Kumar Verma
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Sushil Kumar Singh
 
Counsel for Opposite Party :- Govt. Advocate,Priyanka Singh,Umesh Chandra
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Sushil Kumar Singh, learned counsel for the applicant, Sri Anirudh Kumar Singh, learned AGA-I and Ms. Priyanka Singh, learned counsel for the opposite party no. 2.

2. By means of this petition the applicant has prayed for quashing of the Charge-sheet dated 10.3.2018 and the entire criminal proceedings in pursuance of charge-sheet pending in the court of IVth A.C.J.M., Court no. 22, Sultanpur arising out of Case Crime No. 163 of 2017 u/s 323, 504, 506, 354, 427, 376 IPC, P.S. Goshaiganj, District Sultanpur pending in Crl. Misc. Case No. 408 of 2018 (State vs. Pankaj & Others).

3. The precise question for consideration is whether the investigation carried out by the incompetent authority and charge-sheet filed by the same authority would make the investigation and charge-sheet as nullity in the eyes of law. Further as to whether the order of cognizance of the Magistrate taking cognizance of the same charge-sheet would also be nullity.

4. For addressing and replying the aforesaid question some brief facts of the case would be necessary to be considered.

5. In the present case a F.I.R. was registered on 6.11.2015 bearing N.C.R. No. 314 of 2015 u/s 323, 504, 427 IPC against four persons namely, Pankaj Verma s/o Ram Kumar Verma, Pradumma Verma s/o Keshavram Verma, Nitesh Kumar Verma s/o Keshavram Verma and Keshavram Verma s/o Sitaram Verma, Police Station Gosainganj, District Sultanpur. However, the bare narration of the F.I.R. revealed that the family members of the complainant namely, Smt. Rampatta Devi w/o Siyaram Verma had sustained injuries on the body and head.

6. Feeling aggrieved from the aforesaid inaction on the part of the police to register the case in N.C.R. instead of regular crime case the complainant of the F.I.R. namely, Smt. Rampatta Devi filed an application u/s 155(2) Cr.P.C. before the court of Magistrate on 8.1.2016. Learned Magistrate after perusing the allegation of the F.I.R. directed, vide order dated 25.1.2016, the S.H.O. concerned to register such case and investigate, therefore, the said case was registered under Crime No. 163 of 2017.

7. After completion of investigation the charge-sheet was filed on 10.9.2017 u/s 354, 323, 504, 506 and 427 I.P.C.

8. As per the material available on record the daughter of the complainant has recorded her statement under section 161 Cr.P.C. on 8.8.2017 and u/s 164 Cr.P.C. on 31.8.2017 making specific allegations against Pankaj Verma and Nitesh Kumar Verma (petitioner herein) regarding outraging of her modesty and attempt to rape. Therefore, it appears that the Circle Officer of the area while indicating his dissatisfaction regarding investigation and charge-sheet wherein the section relating to the attempt of rape was missing directed the S.H.O., Gosainganj, District Sultanpur to depute any other officer to conduct further investigation, returning back the charge-sheet with the complete case diary. Thereafter the S.H.O. concerned vide order dated 19.2.2018 has deputed one Sri Rana Pratap Singh, S.I., P.S. Gosainganj, Sultanpur to conduct further investigation and submit his report.

9. The aforesaid officer has further conducted the investigation and recorded the statement of complainant as well as other 12 witnesses including some independent witnesses who were not related with the family of the complainant. However, the earlier charge-sheet which was filed on 10.9.2017 the statement of only seven witnesses were recorded. On the basis of statement of aforesaid 12 persons including the independent witnesses, the complainant and of the victim and after perusing the statement of the victim recorded u/s 161 and 164 Cr.P.C. submitted supplementary charge-sheet on 10.3.2018 u/s 376 and 511 I.P.C. against Pankaj Kumar Verma s/o Ram Kumar Verma and Nitesh Kumar Verma s/o Keshav Ram Verma bearing no. 1A/2017.

10. Learned counsel for the petitioner has assailed the charge-sheet dated 10.3.2018 on the ground that the investigation conducted by the incompetent officer Sri Rana Pratap Singh inasmuch as at the relevant point of time he was serving on the post of Head Constable (Promotional Pay Scale) whereas such investigation could not have been conducted by any officer lower in rank of Sub-Inspector.

11. So as to strengthen the aforesaid argument Sri Sushil Kumar Singh has drawn attention of this Court towards Annexure no. 13 which is a notification dated 15.9.1997 being issued by the Principal Secretary of the Department of Home, Police Services which was issued under the authority of Governor invoking the provisions of section 157 Cr.P.C. authorising the Head Constable (Promotional Pay-Scale) of the U.P. Police to conduct the investigation in minor case e.g. investigation relating to sections 160,323,324,504,506 IPC, pick-pocketing, theft of bicycle or electricity wire or cattle-car or theft at railway platform to the extent of Rs. 25,000/-, offence relating to the Motor Vehicle Act and relating to section 4(25) of Arms Act. He has further drawn attention of this Court towards Annexure - 14 which is a compliance order of the notification dated 15.9.1997 being issued by the Director General of Police, U.P. He has also drawn attention of this Court towards Annexure no. 13 which is an information provided to the father of the petitioner by the Nodal Officer, RTI / Addl. S.P., Sultanpur dated 28.4.2018 which says that the Investigating Officer concerned namely, Sri Rana Pratap Singh was serving on the post of Head Constable (Promotional Pay Scale) w.e.f. 20.2.2018 to 10.3.2019 at P.S. Gosainganj, District Sultanpur. On the basis of aforesaid documents Sri Sushil Kumar Singh has submitted that at the particular point of time when Sri Rana Pratap Singh had conducted the investigation was not the competent authority to conduct the investigation and to submit charge-sheet u/s 376 and 511 IPC.

12. He has drawn attention of this Court towards section 157 Cr.P.C. which categorically provides that only the competent authority shall be deputed to conduct the investigation and in the present case the competent authority has not been deputed to conduct the investigation and to file charge-sheet u/s 376 and 511 IPC.

13. He has also placed reliance of the dictum of Apex Court in re: State of Haryana vs. Bhajan Lal and others 1992 Supp (1) Supreme Court Cases 335 referring para 113,119 and 120 to submit that the Apex Court has held that the investigation by the designated police officer is the rule of the investigation and by an officer of lower rank is an exception.

14. Per contra, Ms. Priyanka Singh has drawn attention of this Court towards the counter affidavit filed by the victim (Mamta Kumari) referring Annexure no. C.A.-1 thereof which is a final order dated 27.4.2018 passed by this Court in a petition of co-accused Pankaj Kumar Verma filed u/s 482 Cr.P.C. dismissing such petition on merits giving liberty to that petitioner to seek bail before the appropriate court of law. She has also submitted that the same charge-sheet which is impugned herein has been assailed and this Court after considering the arguments of rival parties dismissed such petition, therefore, in the present petition such fact should have been indicated to follow the principles of fairness. As per Ms. Singh if any person does not approach the court with clean hands no benevolence should be shown by the Hon'ble Courts. Therefore, the instant petition may be dismissed on the aforesaid ground alone.

15. So far as the ground of the competence of an authority conducting investigation and filing charge-sheet is concerned she has firstly drawn attention of this court towards the dictum of Apex Court in re: R.A.H. Siguran v. Shankara Gowda alias Shankara reported in (2017) 16 SCC 126. In the aforesaid case the same question has been dealt by the Apex Court as indicated in para 2 thereof which is being reproduced herein below :

"2. The question for consideration is whether the High Court was justified in quashing the proceedings against Respondent No.1 on the ground that investigating Officer who conducted the investigation was not authorized to do so under the provisions of Immoral Traffic (Prevention) Act, 1956 (the Act)."

16. In the aforesaid judgment the Apex Court while considering the dictum of its own court in re: H.N. Rishbud and Another vs. State of Delhi reported in 1955 Cr.L.J. 526 has held in para 13 that the High Court should have not quashed the proceedings merely on the ground that investigation was not conducted by the competent authority. Para 13 thereof reads as under :

"13. In View of the above, we are satisfied that the High Court was not justified in quashing the proceedings merely on the ground that the investigation was not valid. It is not necessary for this Court to go to the question raised by leaned counsel for the appellants that there was no infirmity in the Investigation."

17. The Hon'ble Apex Court in re: H.N. Rishbud and another (supra) vide para 9 and 10 has dealt the issue of competence and was of the opinion that the investigation should have been conducted by the authorized officer but it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Further, such defect, if any may be brought into the notice of learned trial court at the very inception or at a sufficiently early stage so that the appropriate order could be passed by the learned court-below but if the trial has proceeded and it reaches near to conclusion, on the basis of investigation being conducted by incompetent authority, the proceedings may not vitiate unless the person concerned suffers from manifest injustice on account of incompetence. Relevant portion of para 9 and 10 reads as under :

9.The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the base scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cr. P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Cr. P. C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a),(b) and (2) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 Cr. P. C. which is in the following terms is attached :

"Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, Judgment or other proceedings before or during trial or in any enquiry or other proceedings under the Code, unless such error, omission or irregularity, has in act occasioned a failure of justice.

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in - 'Prabhu v. Emperor', AIR 1944 PC 73 (C) and-Lumbhardar Zutshi v. The King', AIR 1950 PC 26 (D)

These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clrarly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent Investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.

10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for.

Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 Cr P. C. of making out that such an error has in fact occasioned a failure of justice.

It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537 Cr. P. C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate a approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorizing an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.

In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such re-investigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.

Emphasis Added

18. The Apex Court while considering H.N. Rishbud and another (supra) in re: M/s Fertico Marketing and Investment Pvt. Ltd. and Ors. etc. vs. Central Bureau of Investigation and another reported in 2020 SCC Online SC 395 has held, that the cognizance and trial cannot be set aside unless the illegality in the investigation can be shown to have brought about mis-carriage of justice.

19. Therefore, in view of the above she has submitted that since the further investigation which was conducted by an officer who was not competent as per notification issued on 15.9.1997 even then such investigation and charge-sheet may not be declared as nullity in the eyes of law inasmuch as such investigation was completed after recording the statement of relevant witnesses and charge-sheet was filed accordingly. Not only the above the learned court-below has taken cognizance on 24.3.2018 and trial is going on since then, therefore, this petition may be dismissed.

20. Learned AGA has also submitted on the basis of instructions that initially the investigation was conducted by the Sub-Inspector but further investigation was conducted by the Head Constable (Promotional Pay Scale) and on the basis of such investigation charge-sheet was filed and the cognizance has been taken on 24.3.2018 and the trial is in progress.

21. Having heard learned counsel for the parties and having perused the material available on record, at the very outset this Court shows his displeasure regarding the conduct of the present petitioner by not coming fairly apprising the Court that the petition of co-accused namely, Pankaj Kumar Verma challenging the same charge-sheet has already been dismissed on merits. However, learned counsel for the present petitioner has submitted that the legal grounds to challenge the impugned charge-sheet in both the petitions are different, therefore, such fact may not be treated as concealment.

22. It has been noted that no interim order has been granted by this Court in favour of the petitioner. However, vide order dated 3.9.2021 this much has been provided that till the next date of listing, the trial court before passing any order in the case pending before it, shall have due regard to the fact that the matter is sub-judice before this Court.

23. So far as the argument of the competence is concerned, I am in full agreement with the decisions so cited by the learned counsel for the petitioner as well as Ms. Priyanka Singh to the extent that the investigation should be carried out by the authorized officer if such authority has been vested by the competent authority. But at the same time I am also in agreement with the view of Hon'ble Apex Court in re: M/s Fertico Marketing and Investment Pvt. Ltd (supra), R.A.H. Siguran (supra) and H.N. Rishbud (supra) that the cognizance and trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. Further, the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of investigation has no relevance to the competence of the court.

24. The material available on record clearly indicates that the victim had alleged the specific allegation against the present petitioner as well as his co-accused namely, Pankaj Kumar Verma while recording her statement u/s 161 and 164 Cr.P.C. that both have outraged her modesty and attempted to rape by torning her clothes, pushing her sensitive body parts etc. As a matter of fact both the accused have committed such act to tarnish the modesty of the victim. Further, the police officer has recorded statement of independent witnesses as well as other witnesses whose statements were not recorded earlier. Further, on the basis of such statements and the statement earlier recorded u/s 161 and 164 Cr.P.C. he filed chargesheet u/s 376 and 511 IPC.

25. To me, on the basis of aforesaid material at least a chargesheet u/s 376 and 511 IPC should have been filed earlier and if such material was not sufficient to file chargesheet under such section, the accused person might very well raise objection before the learned court-below at the various stages available under the law. It is needless to say that while framing the charges the opportunity is provided to the accused person and after considering the objection of the accused person the charges are famed. Even the accused person may file discharge application before the appropriate learned court below but on the basis of allegations, statements of family members, independent persons and statement u/s 161 and 164 Cr.P.C. of the victim, I am afraid why chargesheet was not filed earlier u/s 376 and 511 IPC. However, this observation may not create any hindrance to the accused person opposing against the charge of section 376 and 511 IPC and learned court-below would be at liberty to frame charges against the accused person independently without being influenced from these findings.

26. Therefore, in view of the facts and the case law cited herein above, I do not find any infirmity or illegality in the chargesheet dated 10.3.2018 and the cognizance order dated 24.3.2018 passed by the learned court-below.

27. Hence, the present petition is dismissed being devoid of merits.

28. However, it is needless to say that the petitioner may ventilate his grievances or prejudice or miscarriage of justice on account of impugned chargesheet by filing appropriate application at the various stages available under the law, if he is so advised, but the invalidity of the investigation, if any, has no relevance to the competence of the court concerned. The question so formulated in this case has been answered accordingly.

29. No order as to costs.

(Rajesh Singh Chauhan, J.)

Order Date :- 22.11.2021

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