Vinay Pratap Singh vs State Of U.P. And Another
2022 Latest Caselaw 22387 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 02.12.2022
 
Judgment delivered on 22.12.2022
 
Court No. - 84
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 16524 of 2010
 

 
Petitioner :- Vinay Pratap Singh
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Rajiv Gutpa,Arun Kumar Mishra,Brijesh Sahai,Dileep Kumar
 
Counsel for Respondent :- Govt. Advocate,Anurag Pathak,Ashwini Kumar Awasthi,Gaurav Pratap Singh,Manish Tiwary,Sunil Kr.Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. The genesis of this case commences from an incident occurred way back on 05.12.2006 wherein during a tilak ceremony of family of one Dr. Sitaram Singh (co-accused), celebratory firing was taken place which led to death of two persons viz., Manoj Mishra and Chandreshwari Singh and one person was injured viz., Ram Kumar Yadav. An F.I.R. was lodged on very next day i.e. on 06.12.2006 against four named accused persons, viz., Dr. Ashok Kumar Singh, Vaibhav Sngh, Dr. Abhishek Singh and Dr. Vinod Singh. After investigation, charge sheet dated 29.05.2008 was submitted only against petitioner Vinay Pratap Singh under Section 302 I.P.C. and other named accused were exonerated. Learned Chief Judicial Magistrate took cognizance and matter was committed to Court of Sessions for trial. Charge was framed against petitioner under Section 302 Cr.P.C.

2. During proceedings, case was referred to CBCID by an order dated 20.11.2008 issued by Deputy Secretary, Government of U.P. and entire investigation was handed over to CBCID. An application was moved to differ trial till submission of report of CBCID, however, it was rejected by learned trial Court and trial proceeded in accordance with law. CBCID, after investigation, submitted its report dated 04.09.2009 before Court concerned with request to include case diary in trial. According to report that (i) there are evidence that licensee firearm of Dr. Sitaram Singh was used in celebratory firing during tilak function, however, since during investigation, Dr. Sitaram Singh died, therefore, no prosecution can be initiated against him, (ii) it cannot be concluded that deceased died due to firing by petitioner, therefore, it may not be a case of Section 302 I.P.C. but it would be a case of Section 304 I.P.C.

3. At this stage, petitioner moved this writ petition in 2010 with a prayer to treat report of CBCID, Varanasi as a police report under Section 173(8) or 173(2) Cr.P.C. and only thereafter proceed with trial. It is not in dispute that report of CBCID is on record of trial and cross examination was also conducted in regard to report also as well as presently the case is at fag end and trial is fixed for arguments.

4. In above factual background, Sri Rajrshi Gupta, learned counsel for petitioner has vehemently argued that report of CBCID was in nature of police report filed under Section 173(2) or 173(8) Cr.P.C. and placed reliance on Luckose Zachariah alias Zak Nedumchira Luke and Others vs. Joseph Joseph and Others, 2022 SCC Online SC 241 wherein Supreme Court has considered Vinay Tyagi vs. Irshad Alia alias Deepak, 2013(5) SCC 762 and relevant paragraphs no. 15 and 16 are quoted hereinafter -:

"15. The Sessions Judge was justified in setting aside the order of the Magistrate for the simple reason that after the supplementary report submitted by the investigating officer, the Magistrate was duty bound in terms of the dictum in paragraph 42 of the decision in Vinay Tyagi (supra), as well as the subsequent three-Judge Bench decision in Vinubhai Haribhai Malaviya (supra) to consider both the original report and the supplementary report before determining the steps that have to be taken further in accordance with law. The Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence. The order of the Sessions Judge restoring the proceedings back to the Magistrate was correct to that extent. However, the Sessions Judge proceeded to rely upon the decision of a Single Judge of the Kerala High Court in Joseph (supra), where it was held that:

"7. [...] When a positive report under Section 173(2) of Cr.P.C. is followed by a negative report under Section 173(8) Cr.P.C. and cognizance has been taken upon the former report, the magistrate shall proceed with the case ignoring the latter report. But the supplementary report and the papers connected therewith shall form part of the record of the case and can be used at the trial. What I should do is to dispose of the Crl.M.C. making this position clear."

16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge of the Kerala High Court in Joseph (supra) which is contrary to the position set out in Vinay Tyagi. Hence, the JFCM - I Alappuzha shall reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi v. Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya v. State of Gujarat as noted above and in terms of the observations contained in the present judgment. The Magistrate shall take a considered decision expeditiously within a period of one month from the date of the present order."

5. Learned counsel has also placed reliance on Pooja Pal vs. Union of India, 2016(3) SCC 135 of which relevant paragraphs nos. 93 and 94 are quoted below -:

"93. A strain of poignance and disquiet over the insensitive approach of the court concerned in the textual facts in the context of fair trial in the following observations of this Court in Vinod Kumar v. State of Punjab[Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] sounds an awakening caveat : (SCC p. 227, para 3)

"3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question : Is it justified for any conscientious trial Judge to ignore the statutory command, not recognise ''the felt necessities of time' and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes ''fair trial' for the accused as well as the prosecution?"

94. The observations though made in the backdrop of repeated adjournments granted by the trial court, chiefly for cross-examination of a witness resulting in the delay of the proceedings, the concern expressed is of overarching relevance demanding sentient attention and remedial response. The poser indeed stems from the indispensable interface of the orderly existence of the society founded on the rule of law and "fair trial" for the accused as well as the prosecution. That the duty of the court while conducting a trial is to be guarded by the mandate of law, conceptual fairness and above all its sacrosanct role to arrive at the truth on the basis of material brought on record, was reiterated."

6. Per contra, Sri Manish Tiwari, learned Senior Advocate assisted by Sri Gaurav Pratap Singh for opposite parties no. 2 and 3 have vehemently argued that CBCID has not submitted any charge sheet and has only submitted a case diary with request to take it on record of proceedings. Therefore, it cannot be considered as a report under Section 173(2) or 173(8) Cr.P.C. Conclusion in report is only to effect that petitioner has committed prima facie an offence under Section 304 I.P.C. The applicant will have no prejudice as trial Court can still consider whether a case is made out under Section 302 or 304 I.P.C. on basis of evidence before it. Sri Deepak Kapoor, learned A.G.A. for State has supported argument of learned Senior Advocate appearing for opposite parties no. 2 and 3.

7. Learned Senior Advocate further submitted that the report has been accepted and it is a part of record on which cross examination is also conducted and in this regard he referred cross examination of witness which are part of record.

8. Heard learned counsel for parties, perused record as well as written submissions submitted by parties.

9. Issue before this Court is to consider whether after filing of charge sheet, a report submitted by investigating agency i.e. CBCID, even not being nomenclature as a report under Section 173(8) Cr.P.C. still it should be consider as a report submitted after further investigation in light of Luckose Zachariah (supra) that trial Court is bound to consider the same and then proceed trial though it might be a de-novo trial?

10. In order to consider rival submissions, I have carefully perused observations made in report submitted by CBCID. In writ petition filed by petitioner, only typed copies of same is annexed without enclosing a photocopy of report but it was filed later on along with a supplementary affidavit on 02.12.2022 and this Court finds that there were some mistakes and omissions in typed version. Learned counsel for petitioner is directed to be cautious in future to file correct typed copies and also to annexe its true photocopy. Final observation of report is as follows -:

"अपराध शाखा की विवेचना से पाया गया है कि प्रकरण में जनपदीय पुलिस द्वारा विवेचनोपरांत अभि० विनय प्रताप सिंह के विरुद्ध आरोप पत्र अंतर्गत धारा ३०२ भा०द०सं० न्यायालय प्रेषित किया जा चुका है जिस पर माननीय न्यायलय द्वारा संज्ञान लेते हुए विचारण प्रारम्भ किया जा चुका है। एवं विचारण के क्रम में वादी मुकदमा एवं चक्षु साक्षीगण के अभिकथन की कार्यवाही प्रचलित है अतः न्यायिक निर्णय हेतु अपराध शाखा द्वारा विवेचनात्मक कार्यवाही एवं संकलित साक्ष्यों सम्बन्धी समस्त अभियोग दैनिकियो सहित प्रेषित करते हुए प्रचलित पत्रावली में सम्मिलित किया जाना समीचीन होगा।"

11. From perusal of above referred part of report of CBCID, there is no doubt that this is not a report submitted under Section 173(2) or 173(8) Cr.P.C. CBCID has taken note that trial was already in process, therefore, it was requested to treat it to be a part of trial and as referred above, learned counsel for parties have not disputed that this report is a part of trial and petitioner has cross examined prosecution witnesses in this regard also.

12. In Luckose Zachariah (supra), it has been reiterated that Magistrate has to give due regard to both reports i.e. initial report submitted under Section 173(2) as well as supplementary report after further investigation under Section 173(8) Cr.P.C. and only thereafter, Magistrate would have to take a considered view in accordance with law as to whether there is a ground of presumption that named persons have committed offence.

13. In present case, report submitted by CBCID is not nomenclature as a report submitted under Section 173(8) i.e. a supplementary charge sheet after further investigation though nomenclature is not a bar for Magistrate to consider the report submitted by CBCID to be a report in nature of supplementary report under Section 173(8) Cr.P.C.

14. In Luckose Zachariah as well as Vinay Tyagi (supras), there was a positive as well as negative report also. However, in present case, a report submitted by CBCID cannot be considered to be a negative report as final observation which is quoted hereinafter has only opined that it would not be a case of Section 302 I.P.C. against petitioner but it would be a case of Section 304 I.P.C. only -:

"फिर भी उक्त साक्षियों द्वारा दी गयी मौखिक साक्ष्यों से विनय प्रताप सिंह के विरुद्ध (अपठनीय) अपराध अंतर्गत धारा ३०४ भा०द०सं० ही योजित होता है।"

15. There is merit in argument of learned Senior Advocate appearing for opposite parties no. 2 and 3 that Section 304 is a lessor grievous offence and on basis of evidence led, the Court concerned can convict petitioner under Section 304 Part (1) or Part (2) I.P.C. instead of Section 302 I.P.C. as the case may be, therefore, there will be no prejudice to petitioner.

16. In these circumstances, outcome of above discussion is that facts of present case are different from facts of case of Luckose Zachariah and Vinay Tyagi (supras) and in present case, subsequent report of CBCID is not a negative report and since the report has already been part of trial and petitioner has cross examined prosecution witnesses in regard to contents of report also and as well as that trial Court has liberty to consider evidence led before Court to convict petitioner under Section 302 or 304 I.P.C., as case may be, or even grant acquittal. No prejudice is caused to petitioner by not considering report of CBCID as a report under Section 173(8) Cr.P.C.

17. In these circumstances, I do not find any merit in argument of learned counsel for petitioner, hence writ petition stands dismissed with a direction that trial which is pending for more than 12 years be concluded expeditiously, preferably within six months from today.

Order Date -: December 22, 2022

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]