Ramesh Yadav vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 2252 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Case :- APPLICATION U/S 482 No.4022 of 2021
 
Applicant :- Ramesh Yadav
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home. Lko And Others
 
Counsel for Applicant :- Anupam Mehrotra,Anil Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Akash Prasad,Amitav Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Anupam Mehrotra, learned counsel for the applicant and Sri Anurag Verma, learned AGA-I for the State as well as Sri H.G.S. Parihar, learned Senior Advocate, assisted by Sri Akash Prasad and Sri Amitav Singh, learned counsel for opposite party no.6/ complainant.

2. This petition/application under Section 482 Cr.P.C. has been filed challenging the orders of cognizance and commitment of the case to the Court of Session dated 10.01.2020 (Annexures No.1 & 2); police report/ charge sheet no.01/2020 dated 25.12.2019 (Annexure No.3) and further proceedings thereto. As an interim prayer, further proceedings of Sessions Trial No.11 of 2020, order of cognizance as well as commitment order dated 10.01.2020 and the trial of the present case have been prayed to be stayed during pendency of the present petition.

3. Sri Anupam Mehrotra has assailed the aforesaid orders saying that the impugned police report/charge sheet no.01 of 2020 dated 25.12.2019 (Annexure No.3) was filed on the basis of incomplete investigation in Case Crime No.366 of 2019 lodged at Police Station Harchandpur, Raebareli (under Sections 147, 148, 149, 323, 302, 201, 120-B & 216 IPC), wherein the applicant and fifteen more accused persons have been implicated, therefore, such police report may not be termed as police report strictly in terms of Section 173 Cr.P.C. He has also assailed the order dated 10.1.2020 whereby the learned Chief Judicial Magistrate, Raebareli has taken cognizance of the charge sheet committing the case for trial to the Court of Sessions Judge without ascertaining and verifying the fact as to whether the police report/ charge sheet has been properly filed or not. As per Sri Mehrotra, since the police report/charge sheet has been filed on the basis of incomplete investigation and such fact is clear from the charge sheet itself, therefore, learned Chief Judicial Magistrate instead of taking cognizance of said charge sheet and committing the case for trial, he should have ordered either for further investigation or should wait till investigation completes and all relevant material is placed before the court.

4. Brief facts to consider the prayers of the present applicant are that one FIR was lodged by opposite party no.6, which has been registered as Crime No.366 of 2019, originally under Sections 302 & 201 IPC and was subsequently converted under Sections 147, 148, 149, 323, 302, 201, 120-B & 216 IPC, Police Station Harchandpur, Raebareli against Suresh Yadav, the owner of Somu Dhaba and the unidentified staff members of Somu Dhaba. The alleged incident occurred on 9.10.2019 at 22:00 hours at Somu Dhaba and in the FIR in question, it has been alleged that Aditya Pratap Singh alias Ravi, son of Pradeep Kumar Singh, the complainant (the opposite party no.6 herein) was at the house of his 'bua', (the sister of Ravi's father, Pradeep Kumar Singh, the complainant/opposite party no 6 herein) at Jankipuram, Kanpur Road, P.S. Kotwali Sadar, Raebareli in the night of 9.10.2019 when at around 10:00 PM, Ravi on being called by three persons (Manish Singh, Saurabh Singh and Ajay Singh), went to meet them on a motorcycle (No. UP 33 N 7162). That night, when Ravi did not return to the house of his bua, his bua tried the whole night to contact Ravi on his mobile phone but could not contact him. On the next day, at 7:00 AM, the call of Ravi's bua on Ravi's mobile phone was answered by the S.H.O., Police Station Harchandpur, Raebareli, who told Ravi's bua that the person, the call on whose mobile phone is being answered, his dead body has been found near a godown near Garhi Khas (at Raebareli) and the police has taken the dead body to the District Hospital, Raebareli. On being informed by Raj Kumari Singh about what the S.H.O, told her, Pradeep Kumar Singh (the father of Ravi/the complainant/the opposite party no 6 herein) reached the District Hospital, Raebareli where he found his son lying dead. Thereupon, Pradeep Kumar Singh (the complainant/the opposite party no 6 herein) called Ajay and Manish (supra) to enquire about the death, upon which Pradeep Kumar Singh was told that the previous night, Ravi, along with Manish Singh, Saurabh Singh and Ajay Singh mentioned above, went to the Somu Dhaba for dinner where, in a fracas, Ravi was beaten up by Suresh Yadav (the owner of Somu Dhaba/the applicant's cousin) and the staff members of Somu Dhaba with bamboo stick, poles and iron stick ("lathi, dandey and sariya"). In this fracas, as apprehended by Pradeep Kumar Singh (the complainant/the opposite party no.6 herein), Ravi was killed and his dead body might have been thrown near the godown near Garhi Khas to make the murder appear as an accident. Further, the complainant/the opposite party no 6 herein also apprehended that the CCTV Footages of Somu Dhaba of the intervening night of October 9 and 10, 2019 from 10:00 PM to 01:00 AM might have been deleted so as to erase the evidence of murder.

5. As per Sri Mehrotra, for the aforesaid incident one local leader- Member of Legislative Council, U.P. from Raebareli (for short "MLC"), namely, Sri Dinesh Pratap Singh wrote a letter dated 12.10.2019 to the Chief Minister of U.P. alleging that death of Aditya Pratap Singh alias Ravi is murder at Somu Dhaba and the accused persons are guilty of this murder. It has been further alleged in the said letter that the victim succumbed to the injuries caused by the heated tools used for cooking food. Sri Mehrotra has further submitted that on the aforesaid letter dated 12.10.2019, the Chief Minister of the State directed his Special Secretary to do the needful exercise with promptness and effective action be taken to punish the guilty persons. On the direction of the Chief Minister, the Special Secretary wrote a letter to the Additional Chief Secretary, Home, enclosing therewith the letter of MLC for doing the needful exercise. Therefore, as per Sri Mehrotra, the entire exercise has been carried out by the police at the behest of local MLC and the Chief Minister.

6. Sri Mehrotra has further submitted that since the Additional Chief Secretary, Home, was taking personal interest in the matter, therefore, the investigation was hurriedly concluded and charge sheet was filed on 25.12.2019. The aforesaid charge sheet was based on incomplete investigation inasmuch as during investigation on 14.11.2019, three hard-disks and two adopters of CCTV footage were sent by the police to the Forensic Science Laboratory (FSL) and FSL report was not enclosed with the charge sheet. Sri Mehrotra has drawn attention of this Court towards the last page of the charge sheet to show that the Investigating Officer has categorically indicated that despite the couple of reminders being sent to obtain FSL report, the same has not been received for the reason that no such examination could take place. It has been further indicated that as soon as such FSL report is received, the same shall be produced before the learned court. However, it has been requested in the said charge sheet that on the basis of material available on record, the evidences collected and the statements recorded during investigation, the accused persons may be punished. He has further submitted that despite the fact that charge sheet has already been filed on 25.12.2019, even then the supplementary statements (Mazeed Bayaan) have been recorded by the Investigating Officer of certain persons on 8.1.2020, which is not permissible in the eyes of law inasmuch as there cannot be any further investigation when the original investigation is incomplete. However, ignoring the aforesaid legal binding, the Chief Judicial Magistrate, Raebareli took cognizance of the charge sheet on 10.1.2020 and committed the issue to the Court of Session.

7. Sri Mehrotra has drawn attention of this Court towards the order dated 13.9.2021 (Annexure No.13) whereby the court of Additional Sessions Judge-I, Raebareli, the trial court, directed the State/prosecution to apprise that whether the investigation has completed or not. On the basis of aforesaid order dated 13.9.2021, Sri Mehrotra has submitted that it is evident that so called police report/charge sheet was filed on the basis of incomplete investigation, therefore, the proceedings of trial court are futile as it cannot take cognizance of the offence unless the case has been committed to it by a Magistrate under Section 193 Cr.P.C. For the convenience, relevant portion of Section 193 Cr.P.C. is being reproduced herein below:-

"193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

8. Sri Mehrotra has submitted that since the impugned charge sheet as well as cognisance order are nullity in the eyes of law, therefore, those may be quashed. He has further submitted that since the charge sheet and cognizance order are not sustainable in the eyes of law, therefore, further trial proceedings in the case in question may be stayed till conclusion of proper investigation as per law. Sri Mehrotra has submitted that the Chief Judicial Magistrate has overlooked the fundamental features of taking cognizance within the meaning of Section 193 Cr.P.C. These well settled features are; (1) for "taking cognizance" no formal action is prescribed, it is taken when a Magistrate first takes judicial notice of an offence i.e., when the Magistrate applies mind for the purpose of proceeding further on a complaint or on a police report or upon information of a person other than a police officer, as the case may be ("judicial notice" inherently means due application of mind); and (2) "Cognizance" means taking cognizance of offence and not of the offenders i.e., the due application of mind by the Magistrate is to be on how much is the commission of an alleged offence made out by the police report ('charge sheet') for the purpose of having a triable case. However, in the present case, as per Sri Mehrotra, the Chief Judicial Magistrate did not take cognizance/applied his mind to the alleged offence, as no conclusion on the commission of alleged offence was possible without the FSL report and without the completion of investigation. In support of his aforesaid submission, he has placed reliance upon the dictums of the Hon'ble Apex Court in re; R.R. Chari v. The State of Uttar Pradesh, AIR (38) 1951 SC 207, Narayandas Bhagwandas Madhavdas v. The State of West Bengal, AIR 1959 SC 1118, Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, Darshan Singh Ram Kishan v. The State of Maharashtra, 1971 SCC (Cri) 628, Mowu v. The Superintendent, Special Jail, Nowgong, Assam and others, 1972 SCC (Cri) 184, State of West Bengal v. Manmal Bhutoria and Others, (1977) 3 SCC 440 and Tula Ram and Others v. Kishore Singh, (1977) 4 SCC 459. He has referred para-9 of the dictum of of the Apex Court in re; R.R. Chari (supra). Relevant extract of para-9 of R.R. Chari (supra) is being reproduced herein below:-

"(9) ....What is taking cognizance has not been defined in the Cri.P.C. & I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Mag. has taken cognizance of any offence u/s. 190(1)(a) Cri.P.C., he must not only have applied his mind to the contents of the petn but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap., proceeding u/s. 200 & thereafter sending it for inquiry & report u/s. 202....."

9. In support of his argument that in absence of the completion of

investigation, cognizance order of the Chief Judicial Magistrate is a nullity, pursuant to which the trial is impossible and could not commence, Sri Mehrotra has cited the dictum of the Apex Court in re; Raj Kishore Prasad v. State of Bihar and Another, (1996) 4 SCC 495.

10. Referring the dictum of the Apex Court in re; Satya Narain Musadi and Others v. State of Bihar, (1980) 3 SCC 152, Sri Mehrotra has submitted that the Hon'ble Apex Court has clarified about the police report in paras 9 & 10 of the aforesaid judgment observing that Section 173 (2) (1) Cr.P.C. provides that on completion of investigation the police officer investigating into the cognizable offence shall submit a report in the form prescribed by the State Government. Statutory requirement of the report under Section 173 (2) Cr.P.C. would be complied with if the various details therein prescribed are included in the report. On the strength of the aforesaid dictum, Sri Mehrotra tried to explain that unless and until the entire material is collected by the investigating agency, charge sheet should have not been filed and if charge sheet is filed on the basis of incomplete investigation, the learned court of Magistrate should not take cognizance thereof.

11. He has further submitted that the Apex Court in re; Divine Retreat Centre v. State of Kerala & Ors, AIR 2008 SC 1614, V.K. Sasikala v. State Represented by Superintendent of Police, (2012) 9 SCC 771, Parminder Kaur v. State of Uttar Pradesh and Another, (2010) 1 SCC 322 and Karan Singh v. State of Haryana & Anr., AIR 2013 SC 2348, has observed that the investigation is the duty of the police in which the courts do not ordinarily interfere. An exception to this is the abuse of police power in an investigation, against which interference by the High Court lies. Application of mind by the Magistrate under Section 173 (2) Cr.P.C. and the plenary powers of the High Court have been held to be the adequate safeguards for ensuring fair investigation.

12. Per Contra, Sri Anurag Verma, learned AGA has raised preliminary objection regarding maintainability of the instant petition/ application in view of the recent pronouncements of the Apex Court in re; State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539, wherein it has been held as follows:-

"16. It is well settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused.....

22. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 CrPC is not the same at the time of framing the charge. For issuance of summons under Section 204 CrPC, the expression used is "there is sufficient ground for proceeding..."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence...". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 CrPC, detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge-sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 CrPC.

23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file.

24. In the present case, cognizance of the offence has been taken by taking into consideration the charge-sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477-A and 120-B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality."

13. Therefore, Sri Verma has submitted that there subsists no valid ground for quashing the criminal proceedings against the accused-applicant and the present petition deserves to be outrightly dismissed.

14. Sri Verma has further submitted that by way of catena of judicial pronouncements, the Apex Court has held that at the time of cognizance, the Magistrate is not required to write a detailed order. So as to strengthen the aforesaid argument, he has placed reliance upon the dictum of the Apex Court in re; Bhushan Kumar and Another v. State (NCT of Delhi) and Another, (2012) 5 SCC 424. Sri Verma has vehemently denied the contention of Sri Mehrotra that the investigation was not carried out in a fair and impartial manner. As per him, the investigation was carried out absolutely in a fair and impartial manner, without any political intervention and pursuant to the revelation of credible and cogent evidence regarding complicity of the accused person, a charge sheet was prepared strictly in consonance with the provisions of Cr.P.C. and was forwarded to the competent court. Sri Verma has further submitted that all reliable and credible evidences have been collected and statements of all witnesses including the injured witnesses have been recorded. Further, at the time of submission of charge sheet only the report from FSL regarding electronic evidence was awaited which will not make the charge sheet against the applicant and other co-accused defective in any manner whatsoever.

15. Sri Verma has however informed the Court that such FSL report regarding electronic evidence gathered during the course of investigation has been received from the Forensic Science Laboratory and the same was duly endorsed in the case diary on 2.11.2021. Such FSL report, which is dated 24.9.2021, has been filed along with supplementary counter affidavit filed on 25.11.2021. Sri Verma has filed statements of all the witnesses including the injured persons by filing counter affidavit and supplementary counter affidavit.

16. Sri Verma has submitted that there is no specific bar to the effect that the additional documents cannot be produced subsequently. If the Investigating Officer obtains reliable document, he may produce the same later on. Not only the above, if the Investigating Officer has himself indicated in the charge sheet that he shall be filing the FSL report when the same is received to him, he can file such report before the learned court concerned and in the present case such FSL report has already been filed. So as to strengthen his aforesaid argument, Sri Verma has cited the dictum of the Apex Court in re; Central Bureau of Investigation v. R.S. Pai and Another, (2002) 5 SCC 82, wherein in para-7, it has been held as under:-

"7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word "shall" used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of A.P. [AIR 1957 SC 737 : 1958 SCR 283 : 1957 Cri LJ 1320] (SCR at p. 293) and it was held that the word "shall" occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained."

17. Sri Verma has further submitted that endeavour of the applicant/ petitioner to portray the illegality in the investigation and the consequent cognizance is entirely misplaced and fallacious. Citing the dictum of the Apex Court in re: Union of India v. Prakash P. Hinduja and Another, (2003) 6 SCC 195, he has submitted that assuming though not conceding that there is any error in preparation of the charge sheet in the instant case, the same is no legitimate ground for interference under inherent power of this Court either with the cognizance or with the charge sheet. Relevant extract of para 21 of the aforesaid case is as under:-

"21. ...The Court after referring to Parbhu v. Emperor [AIR 1944 PC 73 : 46 Cri LJ 119] and Lumbhardar Zutshi v. R. [AIR 1950 PC 26 : (1950) 51 Cri LJ 644] held that if cognizance is in fact taken on a police report initiated 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 and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. This being the legal position, even assuming for the sake of argument that CBI committed an error or irregularity in submitting the charge-sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case."

18. Therefore, Sri Verma has submitted that the present petition may be dismissed.

19. Sri H.G.S. Parihar, learned Senior Advocate, assisted by Sri Akash Prasad, learned counsel for opposite party no.6, has also adopted the arguments of Sri Anurag Verma, learned AGA. Sri Parihar has further submitted that in the present case after recording the statements of the complainant as well as other witnesses and collecting the material, charge sheet has been filed and the same may not be declared invalid for the reason that at the time of filing the charge sheet, FSL report was not filed. However, he has submitted on the basis of instructions that said FSL report has been filed. As per him, the trial is going on, therefore, no interference in the trial may be required and the present petition may be dismissed.

20. Heard learned counsel for the parties and perused the material available on record.

21. It has been gathered from the material available on record that the prosecution has collected material evidences during the course of the investigation including video footage and clips so as to corroborate the prosecution story. The vehicle used in the assault was also recovered and after proper physical examination of such vehicle, it was allegedly found that this was the vehicle which was used by the assailants/accused persons to kill the victim. Statements of relevant and material witnesses and eye witnesses have been recorded. The statements of aforesaid witnesses including eye witnesses vis-a-vis FSL report of the vehicle in question have been enclosed alongwith the counter affidavit and supplementary counter affidavit filed by the State.

22. Law is settled on the point that there is no specific bar to collect the evidence and file the same after filing the charge-sheet. If the material/evidence is credible and relevant for taking the trial court on any certain conclusion, the same may be accepted by the Magistrate/ trial court. The Hon'ble Apex Court in re; State of Maharashtra v. Sharadchandra Vinayak Dongre and Others, (1995) 1 SCC 42, has held that Magistrate can take cognizance of the offence if he is satisfied that the material placed by the prosecution is sufficient for taking cognizance. He is not debarred from doing so merely because police has filed an application after submission of the charge sheet seeking permission to file supplementary charge sheet.

23. The Hon'ble Apex Court in re; Central Bureau of Investigation (CBI) v. R.S. Pai and Ors, (2002) 5 SCC 82, has held that the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge sheet, it is always open to the Investigating Officer to produce the same with the permission of the court. Sri Verma has submitted that the aforesaid exercise is also permitted in view of Section 173 (8) Cr.P.C.

24. The Hon'ble Apex Court in re; Dhanaj Singh alias Shera and Others v. State of Punjab, (2004) 3 SCC 654, has observed in paras 5 to 8 as under:-

"5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977]

6. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] . As noted in Amar Singh case [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version.

8. The stand of the appellants relates essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non-examination of weapons of assault or the pellets, etc. in the background of defective investigation has been considered in Amar Singh case [(2003) 2 SCC 518 : 2003 SCC (Cri) 641]. In the case at hand, no crack in the evidence of the vital witnesses can be noticed."

25. So far as arguments of Sri Mehrotra that charge sheet has been filed under the influence of the local leader, therefore, the same is an outcome of malafide, the Hon'ble Apex Court in re; Mutha Associates and Others v. State of Maharashtra and Others, (2013) 14 SCC 304, has observed in paras 44 to 50 as under:-

"44. That the allegations of mala fides would require a high degree of proof to rebut the presumption that administrative action has been taken bona fide was laid down as one of the principles governing burden of proof of allegations of mala fides levelled by an aggrieved party. The Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. [(2005) 7 SCC 764 : 2005 SCC (L&S) 1020] observed

thus: (SCC p. 790, para 56)

"56. ... It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is ''very heavy'. (Vide E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165]. There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra [(1976) 1 SCC 800] (SCC p. 802, para 2): ''It (mala fide) is the last refuge of a losing litigant.'"

45. In State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566] this Court laid emphasis on the need for furnishing full particulars of allegations suggesting mala fides. The use of words such as "mala fides", "corruption" and "corrupt practice" was held to be insufficient to necessitate an enquiry into such allegations. The Court observed: (SCC p. 611, para 39)

"39. Before we part with this case we must express our strong disapproval of the observations made by B.M. Lal, J. in paras 1, 9, 17, 18, 19 and 34 of his concurring opinion. The learned Judge made sweeping observations attributing mala fides, corruption and underhand dealing to the State Government. These observations are in our opinion not at all justified by the record. In the first place it is difficult to appreciate how any such observation could be made by the learned Judge without any foundation for the same being laid in the pleadings. It is true that in the writ petitions the petitioners used words such as ''mala fide', ''corruption' and ''corrupt practice' but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied insofar as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing."

46. To the same effect is the decision of this Court in Swaran Lata v. Union of India [(1979) 3 SCC 165 : 1979 SCC (L&S) 237] the Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of mala fides.

47. In A. Peeriakaruppan v. Sobha Joseph [(1971) 1 SCC 38] this Court held that even when the Court examining the validity of an action may find a circumstance to be disturbing it cannot uphold the plea of mala fides on ground of mere probabilities. A note of caution was similarly sounded by this Court in E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165] , where the Court held that it ought to be slow to draw dubious inferences from incomplete facts particularly when imputations are grave and they are made against the holder of an office which has high responsibility in the administration. The following passage from the decision is apposite: (E.P. Royappa case [(1974) 4 SCC 3 : 1974 SCC (L&S) 165] , SCC pp. 41-42, para 92)

"92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up--these considerations are wholly irrelevant in judicial approach--but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent."

48. The charge of mala fides levelled against the appellant Mr Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by the Minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of "malice in fact" levelled against the Minister proved.

49. It is true that the High Court has enumerated certain stark irregularities in the decision-making process or the use of material obtained on behalf of (sic behind) the back of the beneficiary of the acquisition as also the denial of fair opportunity to the beneficiary to present its case before the Minister yet those irregularities do not inevitably lead to the conclusion that the Minister had acted mala fide. Failure to abide by the principles of natural justice or consideration of material not disclosed to a party or non-application of mind to the material available on record may vitiate the decision taken by the authority concerned and may even constitute malice in law but the action may still remain bona fide and in good faith.

50. It is trite that every action taken by a public authority even found untenable cannot be dubbed as mala fide simply because it has fallen short of the legal standards and requirements for an action may continue to be bona fide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister, the appellant in Civil Appeals Nos. 2856-57 of 2002, mala fides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the Minister acted out of extraneous considerations. Suspicion, however strong cannot be proof of the charge of mala fides. It is only on clear proof of high degree that the court could strike down an action on the ground of mala fide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the Minister to be mala fide, the impugned order would require correction and Civil Appeals Nos.2856 and 2857 of 2002 allowed."

26. The power of this Court enshrined under Section 482 Cr.P.C. is an inherent power to secure the ends of justice or to prevent any abuse of the process of any Court. This is an extra-ordinary power of the High Court like Article 226 of the Constitution of India but at the same time, this Court must be much careful and cautious before invoking this power to ensure that if this power is not invoked, the litigant would suffer irreparable loss and injury and it would be manifest injustice and abuse of the process of the law. Therefore, the Apex Court has observed in catena of cases that this power should be invoked very sparingly and cautiously.

27. The Hon'ble Apex Court in re; State of U.P. v. O.P. Sharma, (1996) 7 SCC 705, in paras 12 & 13 has observed as under:-

"12. In State of Bihar v. Rajendra Agrawalla [Crl. A. No. 66 of 1996, decided on 18-1-1996] this Court observed as under:

"It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out."

13. In Mushtaq Ahmed v. Mohd. Habibur Rehman Faizi [JT (1996) 1 SC 656] this Court held as under:

"... According to the complaint, the respondents had thereby committed breach of trust of government money. In support of the above allegations made in the complaint copies of the salary statements of the relevant periods were produced. In spite of the fact that the complaint and the documents annexed thereto clearly made out a, prima facie case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondents given out in their petition filed under Section 482, CrPC vis-à-vis that of the appellant and entered into the debatable area of deciding which of the version was true, -- a course wholly impermissible... ."

28. The Hon'ble Apex Court in re; Amanullah and Another v. State of Bihar and Others, (2016) 6 SCC 699, while considering the scope of Section 482 Cr.P.C. has observed in paras 25 to 29 as under:-

"25. A careful reading of the material placed on record reveals that the learned CJM took cognizance of the offences alleged against the accused persons after a perusal of the case diary, charge-sheet and other material placed before the court. The cognizance was taken, as a prima facie case was made out against the accused persons. It is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the charge-sheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the court's duty is limited to the extent of finding out whether from the material placed before it, the offence alleged therein against the accused is made out or not with a view to proceed further with the case.

26. The proposition of law relating to Section 482 CrPC has been elaborately dealt with by this Court in Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . The relevant paras 102 and 103 of which read thus : (SCC pp. 378-79)

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

27. Further, this Court in Rajiv Thapar v. Madan Lal

Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] has laid down certain parameters to be followed by the High Court while exercising its inherent power under Section 482 CrPC, in the following manner : (SCC pp. 347-49, paras 29-30)

"29. The issue being examined in the instant case is the jurisdiction [Madan Lal Kapoor v. Rajiv Thapar, 2008 SCC OnLine Del 561 : (2008) 105 DRJ 531] of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/ complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four : whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

(emphasis supplied)

28. After considering the rival legal contentions urged by both the parties, case law referred to supra and the material placed on record, we are of the view that the High Court has exceeded its jurisdiction under Section 482 CrPC. It has erred in quashing the cognizance order passed by the learned CJM without appreciating the material placed before it in the correct perspective. The High Court has ignored certain important facts, namely, that on 17-10-2008, Appellant 1 was allegedly threatened by the accused Mukhtar for which FIR No. 104 of 2008 was registered against him for the offences punishable under Sections 25 and 26 of the Arms Act, 1959. Further, there are statements of various witnesses made under Section 164 CrP3C, before a Judicial Magistrate, to the effect that the deceased has been murdered by none other than her husband Mukhtar. The evidence collected by the IO by recording the statements of the prosecution witnesses, filed along with the charge-sheet was duly considered by the learned CJM before taking cognizance and therefore, the same should not have been interfered with by the High Court in exercise of its inherent power under Section 482 CrPC.

29. Further, the High Court has failed to take into consideration another important aspect that the case at hand relates to the grave offence of murder and that the criminal proceedings related thereto should not lightly be interfered with, which is a well-settled proposition of law."

29. Therefore, considering the aforesaid settled proposition of law of the Hon'ble Apex Court, I am also of the view that the court should not, except in extra-ordinary circumstances, exercise its jurisdiction under Section 482 Cr.P.C., so as to quash the prosecution proceedings after they have been launched.

30. From the material available on record, I am not convinced that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised in this case. Notably, the charge sheet has been filed only after collecting the relevant material and evidences which, as per prosecution, were sufficient to file the charge sheet. The FSL report, which was not filed initially with the charge sheet, has been filed later on.

31. On the basis of material available on record, I am of the opinion that non-filing of FSL report along with the charge sheet did not vitiate the charge sheet inasmuch as all other relevant and cogent material, as per prosecution, had been filed. As per prosecution, even on the basis of those materials, which were filed along with the charge sheet, were sufficient for the prosecution to establish its case beyond all reasonable doubts and the accused persons can be held liable on the basis of said material evidence.

32. The law is trite that the additional documents/evidence can be produced subsequently if the same has not been filed along with the charge sheet. However, the Investigating Officer is required to produce all required documents at the time of submitting charge sheet but there is no specific prohibition to that effect.

33. So far as the arguments of Sri Mehrotra regarding the factum of malafide is concerned, on the basis of material available on record, such allegation does not, prima facie, appear to be established inasmuch as the authorities concerned have only discharged their duties and responsibilities within four corners of the law.

34. On the basis of allegations of the FIR, material so demonstrated by the learned counsel for the parties, I am conscious about the fact that the present case relates to the grave offence of murder and the manner in which the said murder is said to have been executed is so brutal as the same has been committed after chasing the victim for quite long distance. Even if some irregularities so caused during investigation or court proceedings as demonstrated by Sri Anupam Mehrotra, the same irregularities are curable and can be regularised under the law and such irregularities may not convince the Court to treat the impugned proceedings as a futile exercise to quash them. The law is trite on this point that the inherent power can be exercised when the allegations in the First Information Report or the complain together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. I am afraid I cannot agree with the aforesaid submissions of Sri Mehrotra.

35. As to whether the accused persons would be held guilty or not is absolute domain of learned trial court but on the basis of prima facie satisfaction to interfere with the impugned orders as prayed in the present petition, I do not find any substance to invoke my extra-ordinary inherent jurisdiction enshrined under Section 482 Cr.P.C.

36. In view of what has been considered above, I do not find any infirmity or illegality in the impugned orders, thus I am not inclined to interfere with the impugned orders as prayed in this petition.

37. It is made clear that the observations made herein above shall not affect the trial in any manner.

38. It would be apt to note here that initially the judgement was reserved on 13.12.2021, however, while dictating the judgment, some clarifications from the parties were required, therefore, the case was again listed on 07.04.2022 for further hearing.

39. On 07.04.2022, Sri Mehrotra filed certified copy of the application of the prosecution dated 24.12.2019 whereby 14 days' time was sought for remand by submitting that some evidences are to be collected. On that, this Court asked the learned AGA to apprise the Court as to what evidences have been collected within 24 hours inasmuch as such application was filed on 24.12.2021 and charge sheet was filed next day i.e. 25.12.2019.

40. On 13.04.2022, learned AGA provided copy of case diaries bearing CD-60, 61,62 & 63. He has referred CD62 to show that on 24.12.2019, statement of Pradeep Kumar Singh, informant/complainant and Raj Kumar Singh, eye witness, have been recorded. Serial No.4 (f) of CD61 has been demonstrated to show that name of one accused Sarvesh Yadav son of Bharat Lal Yadav has been dropped from the charge sheet. As per learned AGA, the aforesaid exercise has been carried out on 24.12.2019. On that Sri Anupam Mehrotra has submitted that the aforesaid facts may not be considered as collection of evidence and at the best, it is a recording of statement of some witnesses.

41. As per Sri Mehrotra, there is difference between recording of statement and collecting of evidence. He has further submitted that the aforesaid exercise being carried out till 3:00 PM of 25.12.2019, which has been shown in papers of CD63. Therefore, charge sheet would have been prepared after 3:00 PM. Thereafter, it would have been sent to the supervisory authority, who is Circle Officer and Circle Officer must have taken some time to go through the complete case diary and filed before the court on or before 4:00 PM. Thus, Sri Mehrotra has submitted that it was not practically possible for the prosecution to file charge sheet before the court on 25.12.2019 but the same has been filed on the same date before the court, which is beyond any comprehension. On that, Sri Anurag Verma, learned AGA, has submitted that this fact may not be challenged in a petition filed under Section 482 Cr.P.C. as no miscarriage of justice would be caused to the applicant and only for this reason, impugned charge-sheet, orders and proceedings may not be quashed in view of the settled proposition of law by the Apex Court as cited above.

42. Considering the aforesaid aspects of the issue in question, I am constraint to observe that the prosecution could not explain properly the aforesaid chain of events, but at the same time, I am conscious about the fact that even if there is any procedural lapse or technical error in preparation of the charge sheet, which is curable under the law and such error does not appear to be manifest error and is not causing any miscarriage of justice to the applicant as ample opportunity would be provided to the applicant/defence at the time of trial as per law, therefore, invoking powers enshrined under Section 482 Cr.P.C., charge-sheet and proceedings so challenged may not be quashed.

43. Accordingly, this petition fails and is dismissed.

44. No order as to costs.

[Rajesh Singh Chauhan,J.]

Order Date :- 07.05.2022

RBS/-