Allahabad High Court
Mohammad Rehan @ Babu Bhai Tannery ... vs State Of U.P. And Another on 11 January, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- APPLICATION U/S 482 No. - 30657 of 2022
Applicant :- Mohammad Rehan @ Babu Bhai Tannery Wale
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sheshadri Trivedi,Sr. Advocate
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Rejoinder affidavit has been filed today on behalf of applicant, is taken on record.
Heard Mr. Satish Trivedi, learned Senior Counsel assisted by Mr. Ajay Pandey, learned counsel for the applicant, Mr. R.P. Mishra, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by applicant to quash the impugned order dated 6.4.2022 whereby charges under Sections 147, 148, 149, 307, 452, 354, 392, 302, 120-B IPC has been framed against the applicant and charge sheet dated 31.10.2021 as well ss cognizance order dated 6.12.2021 as well as the entire proceedings of Sessions Trial No.1673 of 2021 arising out of Case Crime No.19 of 2020, Police Station Chakeri, District Kanpur Nagar pending in the court of Additional Sessions Judge, Court No.26, Kanpur Nagar.
Mr. Trivedi, learned Senior Counsel appearing for the applicant has submitted that initially the impugned FIR has been lodged against the applicant and other co-accused persons. After investigation, the investigating officer has submitted first final report on 27th February, 2020 and second final report has been submitted on 8th April, 2020 exonerating the applicant. He has further submitted that despite the fact that twice final report has been submitted, further investigation was conducted without obtaining permission from the Magistrate and the investigating officer has submitted impugned supplementary police report and proceeding was initiated against the applicant. He has further submitted that the concerned Magistrate without considering the final report submitted twice against the applicant, rejected the discharge application of the applicant without giving any reason. He has further submitted that it is a settled principle of law that at the stage of considering the application for discharge, the court must proceed on the assumption that the material brought on record is true and evaluate in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the present case, the court below has misread the material on record and on that basis has proceeded to frame the charge against the applicant and the present criminal proceedings are covered by the conditions (e) and (g) of Bhajan Lal's Case. In support of his submission, leaned counsel for the applicant has relied upon the latest judgment of Hon'ble Apex Court in the cases of Vinay Tyagi vs. Irshad Ali @ Deepak and others, 2012 (2) Supreme (SC) 903 passed in Criminal Appeal Nos.2040 and 2041 of 2012, and Luckose Zachariah @ Zak Nedumchira Luke and others vs. Joseph Joseph and others passed in Criminal Appeal No.256 of 2022 arising out of SLP (Crl) No.9556 of 2021.
Learned AGA has opposed the contention raised by learned counsel for the applicant and has submitted that the applicant is named in the impugned FIR and now charges have also been framed against the applicant.
I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.
Perusal of record shows that after investigation, the investigating officer has submitted first final report on 27th February, 2020 and thereafter second final report has been submitted on 8th April, 2020 exonerating the applicant. It appears that without any order of further investigation or obtaining any permission from the trial court, the C.O. Cantt has given direction to conduct reinvestigation against the applicant and other co-accused persons and after investigation, supplementary charge sheet against the applicant was submitted despite the fact that applicant was earlier exonerated.
Further investigation conducted by the prosecution without obtaining the permission of the Magistrate and further the court below has not considered the police report u/s 173 (2) Cr.P.C. whereby the applicant was exonerated before rejecting the discharge application of the applicant. The Magistrate was required to take a considered view in accordance with law while deciding the discharge application by passing a speaking and reasoned order.
In the case of Vinay Tyagi (supra), the Apex Court while dealing with the scope of power of a Magistrate has held as under:
"31. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173 (2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173 (3) to 173 (6) would be applicable to such reports in terms of Section 173 (8) of the Code.
32. 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."
In view of the clear position of law, which has been enunciated in the judgment of Vinay Tyagi (supra), it was necessary for the Magistrate to have due regard to both the reports.
Having heard the submissions advanced by learned counsel for the applicant as well as material brought on record, this court of the view that the argument advanced by learned counsel for the applicant has force and in the light of the judgment of Vinay Tyagi (supra), the impugned order dated 6.4.2022 is hereby set aside. The matter is remanded back to the court below to consider and decide the matter afresh, in accordance with law, preferably within a period of one month from the date of production of a certified copy of the order before it. The applicant is allowed one week time to file discharge application afresh.
With the aforesaid directions, the instant application is accordingly, allowed.
Order Date :- 11.1.2023
Ajeet
