Shobha Tyagi And 4 Others vs State Of U.P. And Another
2023 Latest Caselaw 23534 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172544
 
Order Reserved On: 16.08.2023
 
Order Delivered On:28.08.2023
 
Court No. - 86
 
Case :- APPLICATION U/S 482 No. - 43187 of 2017
 
Applicant :- Shobha Tyagi And 4 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Abhitab Kumar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajiv Gupta,J.

1. Heard learned counsel for the applicants, learned AGA for the State and perused the record.

2. The present application u/s 482 Cr.P.C. has been filed with a prayer to quash order dated 28.06.2017 passed by Additional Sessions Judge, Court No.2, Meerut disposing of the application 146(kha) based on the fresh report submitted by the Investigating Officer as well as challenging the entire criminal proceedings of Sessions Trial No. 646 of 2010 (State Vs. Sharad Tyagi and others), arising out of Case Crime No. 163 of 2010, under Section 147, 148, 149, 307, 364, 504, 506 and 34 IPC, Police Station Nauchandi, District Meerut, pending in the court of Additional Sessions Judge, Court No. 2, Meerut.

3. Brief facts giving rise to this application are that an FIR was lodged by Rajnish Tyagi, opposite party no.2 alleging therein that on 25.02.2010, he along with his elder brother Sunil @ Nitu was returning back on rickshaw after withdrawing money from the I.D.V. Bank and when they reached near Shastri Nagar crossing, then a Scorpio car black in colour bearing Registration No. DL 9 CQ 2886 came from behind and stopped the rickshaw. Thereafter, applicant no.2 Sharad Tyagi, his wife Shobha Tyagi, Rishipal, Ishwar Tyagi and Rinku alighted from the car and forcibly tried to drag them in their car and when the passers by tried to rescue them, then Sharad Tyagi by his rifle, Rishipal by his country made pistol and Rinku by his pistol made indiscriminate firing to terrorise the passers by and when they tried to make their escape good, Sharad Tyagi along with his associates abducted Sunil @ Nitu with an intention to kill him. It is further alleged that the applicants also made indiscriminate firing on him. The information of the said incident was given to the Police on 'Dial 100'. On the basis of the said allegations, an FIR was lodged at Police Station Nauchandi District Meerut vide Case Crime No.97 of 2010, under Sections 147, 148, 149, 307, 342, 364, 504, 506 and 34 IPC.

4. After registration of the FIR, the police started the process of investigation and after recording the statement of the various witnesses under Section 161 Cr.P.C. concluded the investigation and submitted Charge-Sheet No. 87 of 2010 dated 16.03.2010. On the basis of the said charge-sheet, the learned Magistrate had taken cognizance vide order dated 27.04.2010 and summoned the applicants to face trial. Subsequently, on 16.06.2010, the case was committed to the court of Sessions and charges were framed against the applicants on 02.08.2010 to which they did not plead guilty and were put to trial.

5. During the course of trial, the statements of P.W. 1 Sunil Kumar Tyagi and P.W. Rajnish Tyagi was recorded on 04.02.2011 and 03.03.2011 respectively.

6. Perusal of the record further shows that at this stage, when the trial was in progress and testimony of witnesses was being recorded, an application was filed by accused applicant no.1, praying for further investigation in the case. On the basis of the said application , the Circle Officer, CIS-I, CBCID U.P. Lucknow passed an order dated 31.01.2014 for further investigation in the case. The said order has not been brought on record. However, it appears that consequent to the said order, an application dated 03.03.2014 was filed by the Investigating Officer, CBCID, to whom the further investigation was entrusted, informing the trial court that pursuant to the order of the S.P. (Crime) further investigation in the said case is being carried out. Record further reveals that the I.O. after concluding the further investigation submitted a final report dated 15.04.2015 in the instant case. After submission of the said report, an application was filed by the applicants before the trial court stating therein that since after further investigation made by the CBCID Lucknow, a final report has been submitted in the instant case, as such, in view of the said final report, the entire proceedings be quashed.

7. The trial court considered the said application and vide its order dated 24.09.2016 rejected the said application stating therein that in the instant case after framing of charges against the applicants, trial is in progress and therefore, at this stage, the instant application for dropping of the proceedings is not maintainable.

8. Being aggrieved and dissatisfied by the said order, the applicants filed an Application u/s 482 No. 40609 of 2016 (Shobha Tyagi and 4 others Vs. State of U.P. and another) before this Court. The said application was disposed of by this Court vide order dated 03.01.2017 with a direction to the court below to consider and decide the final report submitted in the aforesaid case expeditiously in accordance with law, after hearing the concerned parties.

9. Pursuant to the said order passed by this Court, the court below considered the final report submitted by the investigating officer and passed the impugned order dated 28.06.2017 stating therein that the final report submitted by the investigating officer under Section 173(8) shall form part of the record and the defence may question the prosecution witnesses in respect of the said final report during their cross-examination. Further, on the basis of the final report, the trial of the instant case cannot be closed.

10. Being aggrieved and dissatisfied by the said order, the present application u/s 482 Cr.P.C. has been filed.

11. Learned counsel for the applicants has submitted that though at the earlier stage the police after concluding the investigation has submitted the charge-sheet against the applicants, on the basis of which, the case was committed to the court of Sessions and thereafter after framing of charges, the trial commenced and statement of two prosecution witnesses has been recorded, who have not supported the prosecution story and have been declared hostile and thereafter on the basis of further investigation made by the CBCID, since a final report has been submitted before the court below by the investigating officer in exercise of power under Section 173(8) Cr.P.C., as such, considering the fresh report (final report), which states that no offence is made out against the applicants, the trial of the instant case should be dropped and the applicants be discharged as no fruitful purpose would now be served by continuing the trial and as such, the entire proceedings be quashed by this Court in exercise of power under Section 482 Cr.P.C.

12. In order to buttress his argument, learned counsel for the applicant has relied upon a decision in Criminal Misc. Writ Petition No. 6543 of 2023 (Uday Rajgarhia Vs. State of U.P. and 5 others) dated 01.08.2023.

13. Per contra, learned AGA has vehemently opposed the said prayer and has supported the impugned order dated 28.06.2017 passed by the court below. He has submitted that once after submission of the charge-sheet cognizance has been taken by the Magistrate and case has been committed to the court of Sessions after framing of charges and the trial has already started and two prosecution witnesses have been examined, therefore, on the basis of a subsequent fresh report submitted by the Investigating Officer, CBCID, Lucknow in exercise of power under Section 173(8) Cr.P.C., the entire proceedings cannot be quashed.

14. Learned AGA has further submitted that it is well settled principle of law that if during the course of trial any supplementary report/final report is submitted by the investigating officer in exercise of power u/s 173(8) Cr.P.C., then the said supplementary report may also be considered by the trial court during the course of trial and on the basis of subsequent supplementary report, the entire proceedings cannot be quashed and at the most, the defence may question the prosecution witnesses in regard to the subsequent supplementary report during the course of their cross-examination and as such, the impugned order dated 28.06.2017 passed by the trial court is just, proper and legal and do not call for any interference at this stage.

15. Having considered the rival submissions made by learned counsel for the parties and on perusal of the record, it is crystal clear that after lodging of the FIR against the applicants, the police thoroughly investigated the matter and after recording the statements of the witnesses under Section 161 Cr.P.C. submitted the charge-sheet against the applicants under Sections 147, 148, 149, 307, 342, 364, 504, 506 and 34 IPC on 16.03.2010. On the said charge-sheet, cognizance was taken by the learned Magistrate on 27.05.2010 and the applicants were summoned for facing trial. The case was committed to the court of Sessions and after framing of the charge. The trial court recorded the testimony of P.W. 1 and P.W. 2 and the trial was in progress, however, at this stage at the instance of the accused, an order dated 31.01.2014 was obtained by the C.O., C.I.S.-1, CBCID, U.P. Lucknow to make further investigation and pursuant to the said order, the case was further investigated by the CBCID Lucknow and CBCID Lucknow ultimately on 15.04.2015 submitted a final report stating therein that the case in question was investigated by him in exercise of power under Section 173(8) and from the said investigation, the offence is not corroborated, as such, a final report is submitted before the court concerned trying the offence. Consequent thereto, the applicants preferred an Application u/s 482 Cr.P.C. before this Court and this Court vide order dated 03.01.2017 disposed of the said application with the direction to the concerned court below to consider and decide the final report submitted in the aforesaid case most expeditiously in accordance with law.

16. Pursuant to the said order, the impugned order has been passed clearly stating therein that the said final report shall form part of the records of the instant case and the defence may question the witness regarding the said final report during cross-examination and further that on the basis of the subsequent final report, the entire proceedings of the case cannot be dropped.

17. In the facts and circumstances enumerated above, it is evident that on the basis of the charge-sheet filed against the applicants, the trial was in progress and even two prosecution witnesses had been examined by the trial court and it is at this stage, at the instance of the accused, the order for further investigation has been obtained. It is relevant to point out here that at this stage, when the trial was already in progress, there was no occasion for the C.O., C.I.S.-1, CBCID, U.P. Lucknow to pass an order for further investigation that too by another agency namely CBCID and at the instance of the accused despite the fact that after the first charge-sheet the trial was already in progress and two witnesses had already been examined, therefore, it is not a case for further investigation, but is a case of reinvestigation by another agency.

18. The order passed by the C.O., C.I.S.-1, CBCID, U.P. Lucknow transferring the investigation/ordering further investigation by another agency and that too, on the basis of application/complaint submitted by the co-accused is unknown to law. After an order for further investigation by CBCID, the CBCID has only sent an intimation to the trial court. Even no prior approval/permission has been accorded by the trial court. In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without prior permission of the trial court even while exercising the power under Section 173(8) Cr.P.C. as held by the Hon'ble Apex Court in the case of Bohatie Devi (D) through LRs. Vs. State of U.P. and others in Criminal Appeal No. 1294 of 2023 in its judgment and order dated 28.04.2023. Moreover, in the instant case also, as in the aforesaid case under what authority of law, the C.O., C.I.S.-1, CBCID, U.P. Lucknow has transferred the investigation to another agency and/or ordered further investigation by another agency is not pointed out and that too at the instance of the accused. Consequent to the said investigation, a final report has been submitted in favour of the accused and on that basis, the applicants are praying for quashing of the entire proceedings of trial, which, admittedly, has proceeded to the stage of recording the statement of two prosecution witnesses.

19. Be that as it may be, in the present case after further investigation, a supplementary report has been submitted, which was placed before the trial court and the trial court rightly held that the said final report shall form part of the trial court record and the accused persons may examine the witnesses in the light of the final report at the time of their cross-examination, which order does not suffer from any illegality or error of law. The defence of the accused in respect of the said report can well be considered at the time of trial but in my considered opinion on the basis of subsequent final report before the trial court, the entire proceedings of the trial cannot be quashed and the earlier material collected during the course of investigation, which culminated in a charge-sheet against the applicants cannot be nullfied on the basis of the supplementary report and the entire proceedings cannot be quashed. The case relied upon by the learned counsel for the applicants is clearly distinguishable on facts. While deciding the said writ petition, the law laid down by Hon'ble Apex Court in Bohatie Devi (D) through LRs. Vs. State of U.P. and others in Criminal Appeal No. 1294 of 2023, has not been taken into consideration at all and as such, could be of no help to the applicants.

20. In view of the foregoing discussion, the impugned order dated 28.06.2017 passed by the trial court is just, proper and legal and do not call for any interference. Moreover, in the backdrop of the said facts and circumstances, the trial which is in progress cannot be nullified by the filing of the subsequent supplementary report and the entire proceedings cannot be quashed in exercise of power u/s 482 Cr.P.C.

21.The present application u/s 482 Cr.P.C. is, therefore, devoid of merits and is accordingly dismissed.

22. Admittedly, the said trial is of the year 2010 and as such, the trial court shall expedite the proceedings of the said trial and conclude the same as expeditiously as possible without any unreasonable delay. The interim order granted by this Court dated 05.03.2018 stands vacated and the court below be informed accordingly.

Order Date :- 28.8.2023

Subham