Sawan @ Vishal Jaiswal And 3 Others vs State Of U.P. And Another
2022 Latest Caselaw 11327 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 26.04.2022
 
Delivered on: 26.08.2022
 
Court No. - 88
 

 
Case :- APPLICATION U/S 482 No. - 18835 of 2021
 
Applicant :- Sawan @ Vishal Jaiswal And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Saroj Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Abhishek Kumar Jaiswal,Amit Daga
 
And 
 
Case :- APPLICATION U/S 482 No. - 10962 of 2021
 
Applicant :- Ratan Jaiswal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Saroj Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Alok Kumar,Amit Daga
 

 
Hon'ble Mohd. Aslam,J.

1. Since, both the applications arise out of the same case crime, they are being decided by this common order.

2. Heard Sri Saroj Kumar Yadav, learned counsel for the applicants, Sri Amit Daga, learned counsel for the informant as well as Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record.

3. The instant applications under Section 482 Cr.P.C. have been moved seeking quashing of the impugned judgement and order dated 12.02.2021 passed by Additional Sessions Judge, Court No.6, Allahabad in Criminal Revision No.19 of 2020 (CNR No. UP AD 01-000630-2020), under Section 397 Cr.P.C. (Saritendra Kumar Jaiswal vs. State of U.P. and Another), arising out of order dated 07.01.2020 passed by Additional Chief Judicial Magistrate, Court No.17, Allahabad in Criminal Case No.2198 of 2017 (State of U.P. vs. Vishal and Others), under Sections 498-A, 308 I.P.C and Section 3/4 of Dowry Prohibition Act, Police Station- Sarai Inayat, District- Allahabad as well as the consequential proceedings.

4. The brief facts of the case are that opposite party no.2, Saritendra Kumar (informant) lodged the first information report against the accused-applicants and three others on 27.07.2016 at 13:00 hrs. on the basis of written complaint alleging therein that the marriage of his sister Shradha Jaiswal was solemnized with the accused-applicant Sawan @ Vishal Jaiswal on 24.02.2011. The father of the informant spent a sum of Rs.15 lakhs and also gave a Wagon R car in the marriage as per the demand of the accused-applicants. After marriage, her husband and his other family members started complaining that her father did not give Scorpio in the marriage and they were demanding for Scorpio car and used to beat and torture her on account of non-fulfilment of demand of additional dowry. On 26.07.2016, the accused persons also assaulted her with iron rod on her head with an intention to kill her due to which she sustained serious injury on her head and she was fainting again and again, after that the accused persons left her at Hanumanganj Sarai Lahurpur from where the informant and other family members brought her to home whose condition was very critical.

5. The sister of the informant was medically examined at CHC, Kotwan (Bani), Allahabad on 27.07.2016 at 2:20 p.m. She was brought for medical examination by home guard Santosh Kumar of P.S. Sarai Innayat. At the time of medical examination, her age was found to be 28 years and following injuries were found on her body:-

(i) L.W. 3 cm x 0.5 cm on posterior upper part of skull, 13 cm above from left ear.

(ii) Abrasion 1 cm x 0.4 cm on left lower scapula, 3 cm above from lower border of scapula.

(iii) Complaint of pain over left and right shoulder joint.

(iv) Complaint of pain over right shoulder joint.

(v) Linear abrasion 5 cm to upper scapula, 3 cm below (back) of left scapula.

(vi) Swelling 3 cm x 1 cm at front of thigh, 5 cm above from the left knee joint.

(vii) complaint of pain over right knee joint.

6. The doctor opined that the injuries were simple in nature except injury no.1 which was kept under observation. The duration of injuries was within one day. The injuries were caused by hard and blunt object. The injury no.1 was x-rayed and no abnormality was detected.

7. The investigation of the case was undertaken by Sub-Inspector Neelam Raghav on 29.08.2016 who copied the GD registering case report no.24 on 27.07.2016 at 13:00 hrs. in the case diary and recorded the statement of HCP Aftab Ahmed, scriber of GD and Chik report, informant Saritendra Kumar, victim Shradha Jaiswal and other witnesses Nagendra Singh and Omshikeshwer and also perused the injury report of the victim. The investigating officer also recorded the statements of accused persons namely Sawan alias Vishal Jaiswal (applicant), Ratan Jaiswal (applicant), Smt. Arti, Jyoti and Shweta and inspected the place of occurrence and prepared site-plan (Annexure No.4). After investigation, the Investigating Officer submitted the charge-sheet (Annexure No.5) on 30.08.2016 under Sections 498-A, 308 I.P.C. and Section 3/4 of Dowry Prohibition Act. The Circle Officer, Phoolpur vide order dated 16.09.2016 by observing that the Case Crime No. 285 of 2016, under Sections 498-A, 308 I.P.C. and Section 3/4 of Dowry Prohibition Act was registered at P.S. Sarai Inayat and was investigated by Sub-Inspector Neelam Raghav who drawn only one parcha of case diary and submitted the charge-sheet on 30.08.2016 in which Investigating Officer neither recorded the statement of Samai Sakshi nor properly perused the medical report and investigated the case summarily, ordered the Station House Officer, Sarai Innayat Sub-Inspector Virendra Singh Yadav to get the case further investigated in depth under his supervision. Thereafter, the case was further investigated by Sub-Inspector Santosh Kumar Singh who recorded the statement of witnesses or Samai Sakshi and perused the medical report and X-ray report. He sent letter to Chief Medical Officer (T.B. Sapru), Allahabad for providing the C.T. Scan report of the injured Smt. Shradha Jaisawal. In the CT Scan report, no abnormality was detected. After conclusion of the investigation, he found that the offence punishable under Sections 323, 504, 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act is made out against the accused persons and omitted the offence punishable under Section 308 I.P.C., but supplementary charge-sheet was not filed in the aforementioned case. He sent the charge-sheet submitted by Sub-Inspector Neelam Raghav and supplementary case diary for onward transmission. The charge-sheet filed by Sub-Inspector Neelam Raghav along with supplementary case diary drawn by Sub-Inspector Santosh Kumar Singh is annexed as Annexure No.5 to the affidavit.

8. On the basis of the charge-sheet submitted by Sub-Inspector Neelam Raghav and case diary drawn by Sub-Inspector Santhosh Kumar Singh, the cognizance of offences punishable under Sections 308, 498-A I.P.C. and section 3/4 of Dowry Prohibition Act was taken on 09.10.2017 by learned Additional Chief Judicial Magistrate, Court No.9, Allahabad against which the accused preferred Criminal Revision No. 501 of 2017 (Ratan Jaiswal and 4 Others vs. State of U.P. and Another) which was allowed vide impugned judgement and order dated 31.07.2018 passed by Additional Sessions Judge, Court No.16, Allahabad and the impugned cognizance order dated 09.10.2017 was set-aside by observing that at the time of taking cognizance detailed appreciation of evidence is not required, but when there is a discrepancy in case diary and charge-sheet, in such a situation, it is required that Magistrate has to summarily appreciate the evidence collected during investigation and further investigation and directed the Additional Chief Judicial Magistrate, Court No.9 to pass afresh cognizance order on the charge-sheet in the light of observation made in the judgement of revisional court.

9. Feeling aggrieved by the impugned judgment and order of the revisional court dated 31.07.2018, the informant preferred Criminal Revision No. 3160 of 2018 (Saritendra Kumar Jaiswal vs. State of U.P. and 5 Others) before this Court, which was disposed off vide order dated 23.01.2019 while observing that "since the learned revisional court after setting aside the cognizance order vide order dated 31.07.2018 has only remanded the matter to the court concerned to reconsider the matter, therefore, this court is not inclined to interfere with the matter at this stage. However the court concerned, to whom the matter is remanded, is expected to adjudicate and decide the matter afresh strictly in accordance with law, relying upon the material, case diary and evidence collected by the concerned Investigating Officer, being uninfluenced by the observations made by the revisional court in its impugned order."

10. Thereafter, the accused-applicant Ratan Jaiswal moved an application on 05.07.2019 for summoning the Investigating Officer Sub-Inspector Santosh Kumar Singh to correct the sections under which charge-sheet was submitted or to file amended charge-sheet in the court so that the discrepancy in the charge-sheet and case diary could be cured, which was decided by Additional Chief Judicial Magistrate, Court No.17, Allahabad vide order dated 07.01.2020 holding that after further investigation the Investigating Officer Santosh Kumar Singh has not filed supplementary charge-sheet after completing the further investigation where he has omitted the Section 308 I.P.C. and substituted by offence punishable under Section 323 I.P.C and ordered the Investigating Officer to appear before the court in person and file supplementary charge-sheet. Feeling aggrieved by the aforesaid impugned order, the first informant/opposite party no.2 filed Criminal Revision No. 19 of 2020, which was allowed by Additional Sessions Judge, Court No.06, Allahabad vide order dated 12.02.2021 setting aside the impugned order dated 07.01.2020 while observing that the impugned order was passed against the observations made by this Court vide order dated 23.01.2019 in Criminal Revision No.3160 of 2013 and the learned Additional Chief Judicial Magistrate was directed to pass order in consonance with the order dated 23.01.2019 passed by this Court. Feeling aggrieved, the accused-applicants have preferred the instant applications under Section 482 Cr.P.C.

11. Learned counsel for the applicant has submitted that case in hand the first Investigating Officer Sub-Inspector Neelam Raghav has proposed charge-sheet in the aforesaid case under Sections 498-A, 308 I.P.C and Section 3/4 of Dowry Prohibition Act after conducting the investigation in summary manner and later on by the order of the concerned Circle Officer, the case was further investigated by Sub-Inspector Santosh Kumar Singh who concluded the case and found that offence punishable under Section 308 I.PC. is not made out and in the case diary he has omitted Section 308 I.P.C and held that offence under Sections 323, 498-A I.P.C and Section 3/4 of Dowry Prohibition Act is made out, but he has not submitted any supplementary charge-sheet. It is further submitted that in view of the law laid down by Hon'ble Apex Court in State of Gujarat vs Radhakrishnan Varde, (2014) 3 SCC 569, the applicants shall be seriously prejudiced because the lower court has no option but to frame charge under Section 308 I.P.C.

12. He has further submitted that in above circumstances learned Additional Chief Judicial Magistrate, Court No.17, Allahabad has, according to law, passed the order dated 07.01.2020 and ordered the Investigating Officer to appear before the court in person and file supplementary charge-sheet, which was illegally, against the law and arbitrarily set-aside by learned Additional Sessions Judge, Court No.06, Allahabad vide impugned judgment and order dated 12.02.2021 in exercise of revisional power. It is further submitted that supplementary charge-sheet is needed for taking cognizance and has relied on the law laid down by Hon'ble Apex Court in Vinay Tyagi vs. Irshad Ali alias Deepak and others, (2013) 5 SCC 762. He has further submitted that not only fair trial but fair investigation is also part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner and relied on the law laid down by Hon'ble Apex Court in Babubhai vs. State of Gujarat and others, (2010) 12 SCC 254.

13. On the other hand, learned counsel for the informant as well as learned A.G.A. for the State have submitted that the impugned judgement of revisional court suffers from no infirmity because learned revisional court by impugned judgement set-aside the order dated 07.01.2021 passed by Additional Chief Judicial Magistrate, Court No.17, Allahabad and directed to pass cognizance order in view of the observations made by this Court vide order dated 23.01.2019 passed in Criminal Revision No. 3160 of 2018 (Saritendra Kumar Jaiswal vs. State of U.P. and 5 Others), wherein this Court has observed that "since the court concerned, to whom the matter is remanded, is expected to adjudicate and decide the matter of afresh strictly in accordance with law, relying upon the material, case diary and evidence collected by concerned Investigating Officer, being uninfluenced by the observations made by the revisional court in its impugned order. "

14. I have given thoughtful consideration to the contentions raised by learned counsel for the parties and gone through the entire record.

15. So far as the apprehension of the applicants' counsel that in view of the law laid down by Hon'ble Apex Court in State of Gujarat vs. Girish Radhakrishan Varde (supra), is concerned that relates to the addition of section in charge-sheet on the application of informant. The aforesaid ruling is not related to the cognizance of offence on the basis of charge-sheet. It is further clarified that non-filing of the supplementary charge-sheet after further investigation is an irregularity committed by the Investigating Officer. That case diary shall also be perused by learned Additional Chief Judicial Magistrate to ascertain for what offences the cognizance will be taken on the basis of case diary and charge-sheet which was prepared by the first Investigating Officer Sub-Inspector Neelam Raghav and was submitted by subsequent Investigating Officer Sub-Inspector Santosh Kumar Singh along with case diary. This Court vide order dated 23.01.2019 in Criminal Revision No. 3160 of 2018 observed that "however, the court concerned, to whom the matter is remanded, is expected to adjudicate and decide the matter afresh strictly in accordance with law, relying upon the material, case diary and evidence collected by the concerned Investigating Officer, being uninfluenced by the observations made by the revisional court in its impugned order".

16. Therefore, the impugned order dated 12.02.2021 passed by Additional Sessions Judge, Court No.06, Allahabad in exercise of revisional power, is according to law which warrants no interference by this Court in exercise of its inherent power under jurisdiction 482 Cr.P.C.

17. Both the applications under Section 482 Cr.P.C. are devoid of merits, hence, dismissed.

Order Date :- 26.8.2022

Vikas