Atul Kumar Yadav vs State Of U.P. And Another
2023 Latest Caselaw 4591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Court No. - 69
 
Case :- APPLICATION U/S 482 No. - 3342 of 2023
 
Applicant :- Atul Kumar Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Surya Bhan Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

List revised.

Heard Sri Gaurav Kumar Yadav, Advocate, holding brief of Sri Surya Bhan Singh, learned counsel for the applicant, Sri B.B. Upadhyay, learned A.G.A. for the State and perused the records.

Learned counsels for the parties state that the matter be heard and decided at this stage.

The present application under Section 482 Cr.P.C. has been filed by the applicant Atul Kumar Yadav with the prayer to allow the present application and quash the impugned order dated 19.7.2022 passed by Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Court No. 1, Gorakhpur in Revision No. 08 of 2022 (Atul Kumar Yadav vs. State of U.P.) and the order dated 11.10.2021 passed by the Additional Chief Judicial Magistrate, Court No. 2, Gorakhpur in Criminal Case (State vs. Atul Yadav) arising out of Case Crime No. 162 of 2011, under Sections 147, 342, 353, 504 I.P.C., Police Station Gulariha, District Gorakhpur,  as well as quash the entire criminal proceeding pending before the Additional Chief Judicial Magistrate, Court No. 2, Gorakhpur and with the further prayer to stay the further proceedings of the case during pendency of the present application.

Issue in the case is a legal issue as such the facts of the case are not being dilated into.

A First Information Report was lodged on 22.4.2011 by Sanjay Kumar Pandey the opposite party no. 2 as Case Crime No. 162 of 2011, under Sections 147, 342, 353, 504 I.P.C., Police Station Gulariha, District Gorakhpur, against son of Gopal Yadav and 10 other unknown persons who are said to be his accomplice. The matter was taken up for investigation after which a charge sheet no. 210 of 2011 dated 15.9.2011 was submitted against the applicant Atul Yadav, under Sections 147, 342, 353, 504 I.P.C. on which vide order dated 5.3.2012 the court concerned took cognizance and summoned the accused-applicant. Subsequently, looking to the facts of the matter vide order dated 6.8.2012 the Judicial Magistrate III, Gorakhpur directed the concerned S.H.O. to further investigate the matter. The case was further investigated and a final report being Final Report No. 4 of 2013 dated 10.2.2013 was filed in favour of the applicant. The complainant on the final report gave an application supported by an affidavit dated 12.12.2013 stating therein that final report has been filed and there is no evidence against the applicant and as such the same be accepted and the proceedings be closed. The concerned court subsequently vide its order dated 12.12.2013 accepted Final Report No. 4 of 2013 and ordered the papers to be consigned. Subsequent thereto the case of the charge sheet came up before Additional Chief Judicial Magistrate, Court No. 2, Gorakhpur which vide its order dated 11.10.2021 took it up and by giving a reason that due to some mistake file of the charge sheet was separated to the file of the final report due to which final report was accepted and since cognizance has already been taken upon the charge sheet on 5.3.2012 the same cannot be set aside as it was after application of judicial mind and then rejected the application of the accused to drop the proceedings against him and proceeded with the matter. Aggrieved by the same, the accused applicant filed a Criminal Revision No. 8 of 2022 (Atul Kumar Yadav vs. State of U.P.) before the Sessions Judge concerned which was dismissed vide the judgement and order dated 19.7.2022 stating therein that cognizance on the charge sheet has already been taken and after it final report has been accepted but the cognizance cannot be set aside as it has been done after applying judicial mind. The revision was thus dismissed. Aggrieved by the same the present 482 Cr.P.C. application has thus been filed with the aforesaid prayers.

Learned counsel for the applicant argued that the order dated 11.10.2021 passed by the trial court and also the judgement and order dated 19.7.2022 passed by the revisional court are arbitrary and illegal inasmuch as the law laid down by the Apex Court in the case of Vinay Tyagi vs. Irshad Ali : 2013 (5) SCC 762, has not been considered and both the courts erred in law in passing the said orders. It is argued that the judgment in the case of Vinay Tyagi (supra) has been considered and reiterated in the case of Luckose Zachariah and others  vs. Joseph Joseph and others: 2022 SCC OnLine SC 241. Learned counsel has argued that paragraph nos. 12, 13, 15 and 16 of the case Luckose Zachariah and others (supra) considers the said legal issue while following the judgement in the case of Vinay  Tyagi (supra), the Apex Court has held as follows :-

"12. In terms of sub-Section 8 of Section 173, in the event of a further investigation, the report has to be forwarded to the Magistrate upon which, the provisions of sub-Sections (2) to (6) shall (as far as may be) apply in relation to such report or reports as they apply in relation to a report forwarded in sub-section (2). In this backdrop, while interpreting the above provisions, in Vinay Tyagi (supra) this Court held thus:

"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 227 of the Code."

13 The decision in Vinay Tyagi (supra) was noticed together with other decisions of this Court in the judgment of a three-Judge Bench in Vinubhai Haribhai Malaviya v. State of Gujarat : (2019) 17 SCC 1. This Court held:

"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular,Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC (Cri) 365], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case.

Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603] . Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177 : (2017) 2 SCC (Cri) 331], Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri) 594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] also stand overruled."

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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 vs Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya vs 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."

It is argued that in view of the same the trial court should have considered the positive report and also the negative report as placed before it and should have given a positive finding and then proceed if required in the matter but should not have decided the issue in view of the fact that once cognizance has been taken opinion of the investigating agency in the negative in the matter cannot be looked into. It is argued that the orders are bad in the eyes of law and deserve to be set aside.

Per contra, learned A.G.A. although opposed the prayer for quashing but could not defend arguments in view of the settled principles of law.

After having heard learned counsels for the parties and perusing the records, it is provided that although the trial court had taken cognizance on the charge sheet but the matter was referred for further investigation after which a final report was submitted in favour of the accused. The records show that although final report was accepted by the court concerned and file was separate from that of the case wherein charge sheet was filed and cognizance was taken but if after it being brought to the notice of the court, the court should have considered it and decided the issue in view of the judgement of the Apex Court in the case of Vinay Tyagi (supra) which was later on considered and followed in the case of Luckose Zachariah and others (supra).

In view of the same the order dated 19.7.2022 passed by Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Court No. 1, Gorakhpur in Revision No. 08 of 2022 (Atul Kumar Yadav vs. State of U.P.) and the order dated 11.10.2021 passed by the Additional Chief Judicial Magistrate, Court No. 2, Gorakhpur in Criminal Case (State vs. Atul Yadav) arising out of Case Crime No. 162 of 2011, under Sections 147, 342, 353, 504 I.P.C., Police Station Gulariha, District Gorakhpur, are hereby set aside. The matter is remanded back to the concerned trial court for considering it afresh in view of the judgment of the Apex Court in the case of Vinay Tyagi (supra) and Luckose Zachariah and others (supra) within a period of three months from the date of production of certified copy of this order before it.

The present application under Section 482 Cr.P.C. thus stands disposed of with the aforesaid direction.

(Samit Gopal,J.)

Order Date :- 13.2.2023

Naresh