Ashok Verma vs State Of U.P. And Another
2023 Latest Caselaw 2125 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 88
 

 
Case :- CRIMINAL REVISION No. - 602 of 2022
 

 
Revisionist :- Ashok Verma
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Sushma Singh,Manish Singh
 
Counsel for Opposite Party :- G.A.,Anurag Vajpeyi,Praveen Kumar Singh
 

 
Hon'ble Raj Beer Singh,J.

1. Supplementary affidavit, filed by the learned counsel for the revisionist, is taken on record.

2. Heard Sri Manish Singh, learned counsel for the revisionist, Sri Anurag Vajpeyi, learned counsel for the opposite party No.2 and learned A.G.A. for the State.

3. The present criminal revision has been preferred against the order dated 24.11.2021, passed by the learned Additional Sessions Judge, Court No.1, Varanasi in S.T. No. 422 of 2019 (State vs. Ashok Verma), arising out of Case Crime No. 284 of 2015, under Sections 307, 323 IPC and Section 25/30 of Arms Act, P.S. Cantt. District Varanasi, whereby the application filed by the revisionist under section 227 CrPC for discharge has been rejected.

4. Learned counsel for the revisionist argued that the impugned order is against facts and law and thus, liable to be set aside. It was stated that after investigation of the case, the revisionist was charge-sheeted by the police for offences under Sections 307, 323 and Section 25/30 Arms Act, but later on further investigation was conducted and after further investigation, police have submitted a supplementary report under Section 173(2)/ 173(8) Cr.P.C. with conclusion that only offence under Section 323 IPC is made out against the revisionist and that no offence under Section 307 IPC is made out against the revisionist. Learned counsel submitted that law laid down in case of Vinay Tyagi vs. Irshad Ali alias Deepak (2013) 5 SCC 762, it is clear that in such circumstances both the reports submitted under section 173(2) CrPC have to be read conjointly and conclusion has to be drawn on the basis of cumulative effect of both the reports but in the instant matter, learned Court below has not considered the supplementary report and the material collected during further investigation. Though, trial court has referred case of Vinay Tyagi (supra) in the impugned order, but there is nothing to show that the Court below took into consideration the material collected during further investigation, including the FSL report, which was obtained during further investigation and conclusion of Investigating Officer in supplementary report. It was submitted that in view of supplementary report, no case under Section 307 IPC is made out. Learned counsel has referred the impugned order and pointed out that the discharge application filed on behalf of revisionist/accused has been rejected by merely observing that complainant Ashok Rathi and other witness Sushil Soni have stated in their statements that fire was made by the revisionist from revolver. These statements were recorded during initial investigation. It was submitted that the impugned order is suffering from patent illegality and thus, liable to be set aside. In support of his contentions, learned counsel has also placed reliance upon case of Luckose Zachriah @ Zak Nedumchira Luke and others vs. Josepth Joseph and others (Criminal Appeal No. 256 of 2022, decided on 18.02.2022).

5. Per contra learned A.G.A. and learned counsel for the respondent No.2 have opposed the revision. Learned counsel for the opposite party No.2 argued that after proper investigation, the charge-sheet was submitted against revisionist for offences under Sections 307, 323 IPC and Section 25/30 of Arms Act and cognizance was taken. After four years of the same, report of further investigation has been submitted. The court has already taken cognizance on the basis of first charge sheet. Learned counsel has also referred the case of Vinai Tyagi (supra) and submitted that in such matter, both the reports have to be considered conjointly and cumulative effect of both the reports has to be drawn by the Court but in the instant case as there was eye-witness account of the incident and thus, in view of considering cumulative effect of both the reports, a prima facie case under Section 307, 323 IPC and Section 25/30 of Arms Act, is made out against the revisionist. It was submitted that there is no illegality or perversity in the impugned order. It was also pointed out that a cross first information report was also lodged from the side of revisionist and thus, it cannot be said that no such incident has taken place.

6. I have considered rival submissions and perused record.

7. In the instant case perusal of record shows that first information report of this case was lodged on 01.06.2015 against revisionist Ashok Verma under section 307 IPC, alleging that on 31.05.2015 the informant along with his brother Ashish Rathi has gone to PNU club, where secretary of club, namely Ashok Verma did a quarrel with them and at about 10.00 PM, he forcibly brought them outside the club and fired a bullet at the informant from his pistol, however, the informant escaped and the bullet passed from the side of informant. Police have reached at the spot but the accused has ran away from there. After investigation, the police submitted charge sheet under section 307 IPC against the accused / revisionist Ashok Verma. It appears that after submission of charge-sheet, police have conducted further investigation. During further investigation the FSL report of pistol of revisionist was also obtained and after further investigation, the police have submitted a supplementary supplementary report under Section 173(8) Cr.P.C. with conclusion that only an offence under Section 323 IPC is made out against the revisionist and that no offence under Section 307 IPC is made out against the revisionist. The revisionist filed an application for discharge, which was rejected by the Court below by the impugned order holding that a case under section 307,323 IPC and section 25/30 Arms Act is made out.

8. It is well settled that at the stage of framing of charge or considering discharge application, the court is not to analyse reliability of the material on record. The evidentiary value and its credibility has to be considered at the stage of trial. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. At the stage of consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence. However, in the instant case the question is that what would be the impact and effect of supplementary report field under section 172(8) CrPC after further investigation. In case of Vinay Tyagi (supra), relied by learned counsel for the revisionist, Hon'ble Supreme Court held as under:

''31. Having discussed the scope of power of the Magistrate underSection 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 ofSection 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 ofSections 173(3) to173(6) would be applicable to such reports in terms ofSection 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 ofSection 227 of the Code.''

9. Reiterating the view taken in case of Vinay Tyagi (supra), the Hon'ble Apex Court in case of Luckose Zachariah (supra), held as under:

''9. The initial report under Section 173(2) Cr.P.C which was submitted before the competent court after investigation found that prima facie the appellants were involved in the commission of the offences alleged. The subsequent report under Section 173(8) however has come to the conclusion that the proceedings were liable to be dropped since prima facie no case involving the commission of the offences has been established.

10. In the judgment of this Court in Vinay Tyagi (supra) it has been held that a further investigation conducted under the orders of the court or by the police on its own accord would lead to the filing of a supplementary report. The supplementary report, the Court noted, would have to be dealt with "as part of the primary report" in view of the provisions of sub-Sections 3 to 6 of Section 173.

11. Section 173(8) specifically provides as follows: "(8) 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)."

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 5 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."

10. Thus, it is clear from above referred case laws that where initial report under Section 173(2) Cr.P.C submitted before the competent court after investigation with finding that prima facie the accused was involved in the commission of the offences and later on the subsequent report under Section 173(8) is filed exonerating the accused, in such matters the supplementary report, would have to be dealt with "as part of the primary report" in view of the provisions of sub-Sections 3 to 6 of Section 173 Cr.P.C and both the 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 227of the Code.

11. Keeping the aforesaid position in view, in the instant case it may be observed that the trial court has rejected the application filed by the revisionist / accused under sections 227 Cr.P.C seeking discharge by holding that the informant Ashok Rathi and another witness Sushila Soni have stated in their statements that revisionist Ashok Verma has made the fire from his revolver and thus a prima facie case under section 307, 323 IPC and 25/30 Arms Act is made out. Though, trial court has made a reference to the case of Vinay Tyagi (supra) in the impugned order but there is nothing to show that the Court below took into consideration the supplementary report submitted by the police after further investigation or the FSL report relied in the supplementary report. There is nothing to show that the learned trial court has considered any material collected during further investigation. Thus, it is apparent that impugned order is against law and thus, liable to be set aside.

12. In view of aforesaid, the impugned order dated 24.11.2021 is set aside and the matter is remitted back to the Court below concerned to consider and decide the application of accused- revisionist, filed under section 227 Cr.P.C, afresh in accordance with law.

13. The revision is allowed in above terms.

Order Date :- 20.1.2023

A. Tripathi