Bablu @ Yusuf vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 17052 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:44915
 
Court No. - 28
 

 
Case :- APPLICATION U/S 482 No. - 6543 of 2023
 

 
Applicant :- Bablu @ Yusuf
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Aman Kumar Shrivastav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

Heard leaned counsel for the applicant, Sri Girijesh Dwivedi, learned A.G.A. for the State and perused the material placed on record.

Since the pure legal question is involved in the instant matter, hence, issuance of notice to respondent no. 2 is hereby dispensed with.

The instant application under section 482 Cr.P.C. has been filed with the prayer to quash the impugned Chargeshet dated 03-07-2018 arising out of Case Crime No. 0005/2018, under sections 147, 323, 504, 506 of I.P.C., Police Station-Phardhan, District-Kheri as well as the cognizance/summoning order dated 08-08-2018 passed in Criminal Case No. 125/2018, State Vs. Aleem alias Sibu and Others, under sections 147,323,504,506 of I.P.C. and Section 4/17 of the POCSO Act, passed by the Special Judge, POSCO Act/First Additional Sessions Judge, Lakhimpur Kheri as well as the entire criminal proceedings of the aforesaid case pending before the Additional Sessions Judge, Curt No. 11 of POCSO ACat, Lakhimpur Kheri.

Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been implicated in the instant matter. He next added that the learned trial court while passing the order dated 08-08-2018 has ignored the settled proposition of law that 'for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR, the Magistrate cannot exclude or include any section in the chargesheet after investigation has been completed and the chargesheet has been filed by the police.'. He further added that infact the chargesheet was filed in Case Crime No. 0005 of 2018, against the present applicant under 147,323,504,506 of I.P.C. and not under section 4/17 of the POCSO Act, whereas while issuing the summons and taking the cognizance thereof, Section 4/17 of the POCSO Act has been added and the present applicant has also been summoned in the aforesaid section. He further submits that the chargesheet has been filed against the other co-accused persons under section 4/17 of the POCSO Act and the case of the present applicant is altogether different than the case of the other co-accused persons.

In support of his contentions, he has relied upon a Judgment of the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, reported in (2014) 3 SCC 659 and has referred paragraph nos. 14 to 17 of the said Judgment, which are quoted hereinunder :-

"14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police.

15. The question, therefore, emerges as to whether the complainant/informant prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216,218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the chargesheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet.

16. In the alternative, if a case is based on a complaint lodged before the magistrate under Section 190 or 202 Cr.P.C., the magistrate has been conferred with full authority and jurisdiction to conduct an enquiry into the complaint and thereafter arrive at a conclusion whether cognizance is fit to be taken on the basis of the sections mentioned in the complaint or further sections were to be added or substracted. The Cr.P.C. has clearly engrafted the two channels delineating the powers of the magistrate to conduct an enquiry in a complaint case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conducts investigation under Chapter XII and there is absolutely no ambiguity in regard to these procedures.

17. In spite of this unambiguous course of action to be adopted in a case based on police report under Chapter XII and a magisterial complaint under Chapter XIV and XV, when it comes to application of the provisions of the Cr.P.C. in a given case, the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which is to deal with a case based on a complaint before the magistrate and the police powers based on a police report/FIR has been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of the Cr.P.C. The affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the chargesheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the chargesheet, would be determined only at the time framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 of the Cr. P.C. clearly shall have to be followed."

Referring the aforesaid, he submits the case of the present applicant is squarely covered with the ratio of the judgment aforesaid and thus, the submission is that the summoning order dated 08-08-2018 may be set aside so far as the present applicant is concerned.

On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that the learned trial court has rightly summoned the present applicant as the chargehseet was filed in Case Crime No. 0005 of 2018.

Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it transpires that vide order dated 08-08-2018, the present applicant has been summoned. From a bare perusal of the order dated 08-08-2018, it is evident that the chargesheet has been filed against the present applicant under sections 147,323,504,506,376 of I.P.C., but, the present applicant has also been summoned under section 4/17 of the POCSO Act.

This court has noticed the fact that this controversy has already been dealt with by the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde(Supra), where it has specifically been held that the Magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police.

In the present case, the chargesheet has been submitted and while taking the cognizance and summoning the present applicant, it prima-facie, seems that section 4/17 of the POCSO Act has been added as is evident from the summoning order itself.

In view of above, the instant application is allowed and the summoning order upto the extent to the summoning of the present applicant under Section 4/17 of the POCSO Act is hereby set aside.

It is clarified that this order will not preclude the court concerned to pass appropriate orders for framing of charges against the applicant under appropriate sections.

This order shall be communicated by the present applicant to the trial court concerned within a week.

Consequences shall be followed.

Order Date :- 12.7.2023AKS