Rakesh Kumar vs State Of U.P. And Another
2022 Latest Caselaw 8508 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 27.05.2022 
 
Delivered on 29.07.2022
 
Court No. - 80
 

 
Case :- CRIMINAL REVISION No. - 1007 of 2004
 

 
Revisionist :- Rakesh Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Kamal Krishna,Jeetendra Singh,Pradeep Kumar Sinha
 
Counsel for Opposite Party :- Govt. Advocate,Girish Kumar Singh
 

 
Hon'ble Rajeev Mishra,J.

1. Heard Mr. Ravi Shankar Prasad, the learned Senior counsel assisted by Mr. Pradeep Kumar Sinha, the learned counsel for revisionist, the learned AGA for State and Mr. Girish Kumar Singh, the learned counsel for first informant/opposite party 2.

2. This criminal revision has been filed challenging the order dated 04.02.2004 passed by Chief Judicial Magistrate, Ballia in Case Crime No.2780 of 2003 State vs. Rakesh Kumar & ors under Sections 409, 420, 467, 468, 471 IPC, P.S.- Kotwali, District-Ballia whereby application dated 16.09.2002 filed by accused (revisionist) as well as application dated 19.09.2002 filed by first informant/opposite party 2 have been disposed of finally.

3. Present criminal revision came up for consideration on 11.03.2004 and this Court passed the following order:

"Heard.

Issue notice.

Counter affidavit be filed by 22.03.2004.

List on 22.03.2004.

In the meanwhile further proceedings in Case No.2780/2003 pending before C.J.M., Ballia are stayed."

4. Subsequent to above order dated 11.03.2004, Mr. Jeetendra Singh, Advocate has put in appearance on behalf of the first informant/opposite party no.2.

5. Record shows that in respect of incidents which are alleged to have occurred from February 2, 2000 to September, 2000 first informant/opposite party no.2, Shree Prakash lodged an FIR dated 15.01.2001 which was registered as Case Crime No.29 of 2001 under Sections 409, 467, 468, 471 IPC, P.S.- Kotwali, District- Ballia. In the aforesaid FIR, two persons namely Rakesh Kumar and Radhemohan have been nominated as named accused.

6. After registration of aforementioned FIR, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII of Cr.P.C. On the basis of material collected by him during course of investigation, which according to Investigating Officer, is substantially adverse to named accused, he came to the conclusion that complicity of named accused is prima facie established in the crime in question. Resultantly, Investigating Officer submitted the charge-sheet dated 12.08.2021, whereby and whereunder named accused have been charge-sheeted under Sections 409, 420, 467, 468 & 471 IPC.

7. After submission of aforementioned charge-sheet, cognizance was taken upon same by court concerned. As a result of above, Criminal Case No.2780 of 2003 (State vs. Rakesh Kumar & ors) under sections 409, 420, 467, 468, 471 IPC, P.S.- Kotwali District-Ballia came to be registered in the court of Chief Judicial Magistrate, Ballia. It appears that subsequent to above charge-sheeted accused were summoned by court below.

8. During pendency of aforementioned criminal case, prosecution filed an application for re-investigation of aforementioned case crime number. The said application came to be decided by Chief Judicial Magistrate, Ballia vide order dated 11.10.2021 whereby it was provided that photocopy of the case diary be supplied to the Investigating Officer i.e. Circle Officer, City- Ballia.

9. On the basis of further investigation conducted subsequent to above order dated 11.10.2021, Investigating Officer came to the conclusion that no offence as alleged is made out. He, accordingly, submitted the closure report dated 08.06.2002.

10. After submission of aforementioned closure report, charge-sheeted accused filed an application dated 19.09.2002. However, as the copy of the same has not been brought on record, it's content cannot be gathered.

11. After submission of closure report, abovementioned closure report, charge sheet accused filed an application dated 16.09.2002. However, as the copy of the same has not been brought on record, the contents of the same cannot be gathered. First informant/opposite party no.2 filed an application dated 19.09.2002 praying therein that non bailable warrants be issued against charge-sheeted accused as they have knowledge of the case, inasmuch as, certified copies of the case have already been obtained by them. On this application, court below passed an order dated 19.09.2002 itself whereby warrants were issued against charge-sheeted accused.

12. Both the applications aforementioned came to be decided by court below by means of order dated 04.02.2004 which has been impugned in present criminal revision.

13. Mr. Ravi Shankar Prasad, the learned Senior counsel for revisionist submits that in view of the subsequent closure report dated 08.06.2002 submitted by investigating officer, court below has erred in law in proceeding against the revisionist. He, therefore, submits that order impugned dated 04.02.2004 is therefore not only illegal but also in excess of jurisdiction and consequently, same is liable to be quashed by this Court.

14. Per contra, the learned AGA and Sri Girish Kumar Singh, the learned counsel for first informant/opposite party no.2 have opposed this revision. They jointly submit that after submission of charge-sheet dated 12.08.2021 cognizance was already taken by court below, therefore, submission of the subsequent closure report will not wipe out the effect of the cognizance already taken by court below. It is then contended that the issue as to what shall be the procedure to be followed by Courts when there are two contradictory police reports in terms of Section 173(2) of Cr.P.C. is no longer res integra and stands settled in Vinay Tyagi Vs. Irshad Ali, (2013) 5 SCC 762, wherein following has been observed in paragraph 42 of the judgement;

"42.Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227of the Code."

15. On the aforesaid premise, the learned A.G.A. as well as the learned counsel for first informant/opposite party no.2 jointly submit that present criminal revision is misconceived and, therefore, liable to be dismissed.

16. Having heard the learned Senior counsel for revisionist, the learned AGA for State as well as the learned counsel representing first informant/opposite party no.2 and in view of the settled law as per the judgment of the Apex Court in Vinay Tyagi (supra), as noted herein above, this Court is of the view that no case for interference is made out at this stage, inasmuch as, after submission of the police reports, it is the Magistrate who has to consider the said reports and then pass an order.

17. In view of the above, no good ground exists to entertain the present criminal revision.

18. Consequently, present revision fails and is liable to be dismissed.

19. It is accordingly dismissed.

Order Date :- 29.07.2022

P Kesari