Sunil And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 1396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 71
 
Case :- APPLICATION U/S 482 No. - 21765 of 2022
 
Applicant :- Sunil And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sheshadri Trivedi
 
Counsel for Opposite Party :- G.A.,Ghanshyam Das Mishra
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicants, learned counsel of the opp. Party no. 2 and perused the record.

By means of this application under section 482 CrP.C. the applicant seeks to invoke the inherent jurisdiction of this court to quash the summoning order dated 18.4.2022 passed by learned Chief Judicial Magistrate, Bareilly in case no. 5136 of 2022, State of U.P. Vs. Ram Mohan Sharma and others, the impugned chargesheet/ police report under section 173(2) Cr.P.C. dated 10.10.2021 arising out of case crime no. 76 of 2021, under sections 420, 467, 468, 471, 447, 386, 120-B I.P.C. police station Prem Nagar, District Bareilly as well as entire proceeding of case no. 5136 of 2022 pending before C.J.M. Bareilly.

Vide summoning order dated 18.4.2022 C.J.M. Bareilly summoned above three applicants along with other co accused persons to face trial under sections 420, 467, 468, 471, 447, 386, 120-B I.P.C.

Learned counsel for the applicants submits that on 11.2.2021 a first information report was lodged by Abhaychand Kankan against 19 named accused persons under sections 420, 467, 468, 471, 447, 386, 120-B I.P.C. alleging all the named accused persons including the applicants to be bhumafias that they were misappropriating the land belonging to Kunwar Daya Shankar Edward Memorial Intermediate College, Bareilly by making forged sale deed. They were also giving threats to the college staff and demanding ransom also. While on the basis of the donation papers this land was donated to the college for making hostel for the students in the year 1920 by some rich persons of Bareilly City, in the name of the college, which is mentioned in the revenue record till date.

Previously Sub Inspector Pradeep Kumar vide final report no. 41 /21 dated 12.3.2021 closed the investigation in the present matter. On this final report, the court took cognizance also. When the first informant came to know about this final report, an application was made before the Additional Director General of Police, (Addl. D.G.P.) Zone Bareilly for further investigation by police of some other police station. Who made an order for further investigation under section 173(8) Cr.P.C. for further investigation to be done by Crime Branch Moradabad. Further investigation was started by Inspector Sanjeev Kumar. He received necessary documents from the court and submitted 8 papers of supplementary case diary but due to his personal grievance, the investigation was transferred by Circle Officer crime branch, Moradabad to Mahesh Babu Sharma, the then Sub Inspector Crime Branch, Moradabad, who after receiving the necessary documents, going through the whole case diary and other documents, after recording the statements of the witnesses filed charge sheet dated 10.10.2021 against 16 accused persons including the above three applicants to face trial under sections 420, 467, 468, 471, 447, 386, 120-B I.P.C.

After receiving the charge sheet, the trial court passed the impugned summoning order dated 18.4.2022 and summoned the present applicants and rest co accused persons to face trial under the above mentioned sections.

The arguments of the learned counsel for the applicants are of three fold; (i) that the dispute was purely civil, so the FIR under criminal sections was not maintainable, (ii) when the final report was submitted by the first Investigating Officer then without the orders by the Magistrate, no further investigation could be done and (iii) when there were final report and charge sheet both before the Magistrate concerned, he was under obligation to consider the both documents before passing the impugned cognizance order/ summoning order.

It is claimed that the Magistrate concerned neither considered the final report and discussed the previous evidence on record nor recorded his prima facie satisfaction to summon the accused persons including the present applicants, nor discussed the supplementary case diary or the charge sheet filed by the later Circle Officer, hence, the prayer is made to quash the summoning order, charge sheet and the entire proceedings of the aforesaid case.

Learned counsel for the opp. party no. 2 submitted that apart from civil cases the applicants, accused persons have some criminal litigation also. They are giving threats to officials/ officers of the college / school and are trying to misappropriate and sell the property of the college/ school. They are demanding ransom from them. They have also executed forged sale deeds regarding the property of the college/school. Now they are trying to take forcible possession over the property in dispute, hence, apart from civil liability the applicants are also criminally liable for the acts done by them.

It is further argued by the learned counsel for the opposite party that so far as the question of further investigation is concerned, the opening lines of section 176(8) of the CR.P.C. itself authorize the officer in charge of the police station to make further investigation.

Learned counsel for the opp. Party also argued that apart from the present three applicants and five other co accused persons also moved an application under section 482 Cr.P.C. with the same prayer that has been rejected by this court.

This argument is replied by the learned counsel for the applicants that there is no parity of the rejection order.

If we go through the FIR, the opp. party no. 2 has alleged the applicants to be bhumafias who have misappropriated the properties of various persons and now by executing forged sale deed they are trying usurp the property of the college/school, which is still in the name of the college/school, for the hostel of the children given in donation by some wealthy persons of Bareilly city. It has also been alleged that revenue record regarding the disputed property has been manipulated by the applicants and co accused persons and on the basis of forged sale deed they are giving threats to dispossess the school authorities from the dispute land. They are demanding ransom in this regard. Admittedly civil suits are pending between the parties

In the opinion of the court, all the above mentioned acts impose criminal liability upon the persons who committed the same. Admittedly, the first Investigating Officer had filed a final report in this matter. It is alleged by the opp. party no. 2 that the final report was filed on the ground that the dispute is purely civil. The said final report is not before the court. Whatever the ground may be of filing the final report, it is admitted fact that the final report was submitted and it was only on the application of the opp. party no. 2 the official of the school that the Additional Director General of Police, (Addl. D.G.P.) Zone Bareilly under section 173(8) Cr.P.C. made order for further investigation.

So far as the argument of the learned counsel for the applicants that without order of the Magistrate, no further investigation can be done is concerned, section 173 (8) of the Cr.P.C. is apposite to mention here;

Section 173 (8) Cr.P.C.:- Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and 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 under sub- section (2)."

It has categorically mentioned in the sub section (8) of Section 173 Cr.P.C. above that in respect of an offence where a police report under sub section (2) has been filed, the officer in charge of the police station can make further investigation and when there is clear provision that the police officer can do a further investigation, the argument of the learned counsel for the applicants that without order of the Magistrate the police can not do a further investigation is against law. Otherwise, also in judgment Vinay Tyagi Vs. Irshad Ali alias Deepak, (2013) AIR SCW 220, the Apex Court defined the word 'investigation'. ''Initial investigation', ''further investigation' and ''re investigation', it was made clear by the Apex Court that 'further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of section 173 (8) of the Cr.P.C. It is the continuation of a previous investigation and therefore, is understood and described as a ''further investigation'. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. The further investigation does not have the affect of wiping out directly or impliedly the initial investigation conducted by the Investigating agency. This is a kind of continuation of previous investigation'.

It is further opined by the Apex court that in the case of ''fresh investigation' 're investigation' or ''denovo investigation', there has to be a definite order of the court. The order of the court ambiguously should state as to whether the previous investigation, for reasons to be recorded is incapable of being acted upon. It was held by the Apex court that the ''fresh investigation', 're investigation' or 'denovo investigation' can be ordered by the higher judiciary only and the cases where such directions can be issued are few and far between. Though the Apex Court has held that the Magistrate has power to direct further investigation after filing of a police report but the power of the police cannot be said to be restricted.

While there is clear provision under section 173(8) of Cr.P.C. that the officer in-charge of the police station shall not be deemed to be precluded from further investigation, where he obtains further evidence, oral or documentary, he shall forward to the Magistrate further report or reports regarding such evidence in the form prescribed, thus, the arguments of the learned counsel for the applicants against this provision fail.

It is further argued by the learned counsel for the applicants that before filing of chargesheet dated 10.10.2021 the court had already taken cognizance on the final report on 25.3.2021. A misc. case no. 82 of 2021 was registered issuing notice to Opp. Party no. 2. This version of the applicants' counsel shows that after receiving final report only notices were issued to opp. Party no. 2 and issuing notice to the first informant cannot be said of taking cognizance on final report. Thus, the argument of the applicants' counsel that after taking cognizance on final report charge sheet could not be filed, fails.

So far as the last argument of the learned counsel for the applicants is concerned that at the time of taking cognizance/ passing summoning order, the court concerned had to take into consideration final report and charge sheet both, which is not done by the court concerned. This argument advanced by the learned counsel for the applicants has substance.

Admittedly, in the present case final report was submitted by Sub Inspector Pradeep Kumar on 12.3.2021 and after further investigation charge sheet was submitted by other Investigating Officer Mahesh Babu Sharma, Crime Branch, Moradabad on 10.10.2021. In judgment Vinay Tyagi Vs. Irshad Ali ( Supra), the Apex Court held that

"the further investigation whether ordered by the Magistrate or done by the police on his own accord may lead to filing of a supplementary report. Such supplementary report shall be dealt with as a part of primary report. Further in para graph 32 the Apex Court held that "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.

Following the same view, the Apex Court in judgment of Luckose Zachariah @ Zak Nedumchira Luke and others Vs. Joseph Joseph and others in Criminal Appeal No. 256 of 2022 vide judgment dated 18.2.2022, held that "the positive and negative reports submitted under sub sections (2) and (8) of section 173 Cr.P.C. respectively must be read conjointly to determine if there is prima facie ground for believing that the accused has committed the offence. The reports do not have a separate existence."

In the case in hands the first Investigating Officer Pradeep Kumar submitted final report on 12.3.2021, thus prima facie no case involving the commission of the offence was established, but after further investigation the Investigating Officer Mahesh Babu Sharma vide order dated 10.10.2021 filed charge sheet on the basis of evidence on the record, finding the applicants and co accused persons prima facie guilty of committing offence under sections 420, 467, 468, 471, 447, 386, 120-B I.P.C.

Admittedly, previously the notice was issued by the Magistrate on the final report, thus, no cognizance was taken on final report till date of filing charge sheet. By the impugned order dated 18.4.2022 the trial court took cognizance against the present applicants and other co accused persons by summoning them to face trial under sections 420, 467, 468, 471, 447, 386, 120-B I.P.C.

If we go through the impugned order dated 18.4.2022 passed by the Chief Judicial Magistrate, Bareilly, it is a cryptic order. The conclusion recorded by the trial court is not preceded by the discussion of the evidence recorded by the first Investigating Officer and the statements recorded by the last and third Investigating Officer. The trial court has not even recorded its prima facie satisfaction regarding the grounds of summoning the accused. The final report filed by the first Investigating Officer is not even mentioned in the order. Thus, in compliance of the finding of the judgment in Luckose Zachariah @ Zak Nedumchira Luke and others (supra), the Magistrate concerned has not read conjointly both, the final report and the charge sheet, to determine that there is prima facie ground for believing that the accused has committed the offence.

Thus, where the arguments of the learned counsel for the applicants that the dispute is mere civil or that the police officer had no right, without an order of the Magistrate, to make further investigation have no force, the court is convinced with the argument of the applicants' counsel that both the final report and the charge sheet filed in same case need to be read conjointly, to determine if there exists a prima facie ground for summoning or not summoning the accused persons, C.J.M. Bareilly has not read both final report and the charge sheet conjointly to reach at the conclusion. It is explicitly clear that the impugned cognizance/ summoning order passed by C.J.M. Bareilly is a cryptic order wherein the officer has not followed the mandate of law laid down by the Apex Court in the various judgments discussed above. The impugned order dated 18.4.2022 being against the mandate of law is hereby set aside. The trial court is directed to pass a fresh summoning/cognizance order following the law laid down above.

Application u/s 482 Cr.P.C. is allowed to the above extent.

Order Date :- 13.1.2023

Gss