Allahabad High Court
Ram Prasad vs State Of U.P. And Another on 25 July, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:150224
Court No. - 88
Case :- APPLICATION U/S 482 No. - 23026 of 2023
Applicant :- Ram Prasad
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rohit Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned A.G.A. for the State of U.P./opposite party no. 1 and perused the record.
This application under Section 482 Cr.P.C. has been filed by the applicant to quash the proceedings of Case Crime No. 385 of 2022, recall of non-bailable warrant as well as order dated 17.05.2023 issued under Section 82 Cr.P.C., under Sections 8/20/60/37 of N.D.P.S. Act, Police Station Sikandra, District Agra.
The brief facts of the case which are required to be stated are that in this case, first information report dated 09.06.2022 was lodged by Mr. Anand Kumar Shahi, Incharge Inspector of Police Station-Sikandra, District-Agra with regard to recovery and seizure of 18 quintal and 20 kg of ganja from vehilce no. UP-85-AT-8686; investigation of the case was being conducted by S.I. Jitendra Gautam and first charge-sheet was submitted on 04.08.2022 against Virat Singh @ Munna, Karan Kumar and Somnath and after transfer of S.I. Jitendra Gautam, the pending investigation was transferred to S.I. Nishant Raghav on 22.09.2022 but again investigation was transferred to S.I. Ashish Tyagi who filed second charge-sheet on 16.11.2022 against Bittu @ Gautam and they are facing trial. Thereafter Mr. Anand Kumar Shahi, Incharge Inspector of Police Station-Sikandra moved an application dated 08.12.2022 before Deputy Commissioner of Police (City), Commissionerate Agra seeking direction / permission for further investigation in the matter on the ground that investigating officer S.I. Ashish Tyagi was the witness of arrest of the accused, therefore, he could not conduct investigation, which was allowed on 09.12.2022. The applicant-Ram Prasad moved an application to release the vehicle UP-85-AT-8686 mentioning therein that he is the registered owner of the said vehicle. The application of the applicant was allowed vide order dated 27.01.2023 of Additional District and Sessions Judge, Court no. 18, Agra and vehicle in question was released in his favour on 22.02.2023. During further investigation, applicant did not appear before the investigating officer, therefore, an application was moved by the investigating officer before the Special Judge (N.D.P.S. Act) to issue non-bailable warrant against the him, on which non-bailable warrant was issued against the applicant on 31.03.2023 by the court concerned but again he did not appear, therefore, the concerned court below passed an order dated 17.05.2023 under Section 82 Cr.P.C. against the applicant, which are the subject matter of challenge in this application.
The main substratum of argument of learned counsel for the applicant is that the applicant was not aware about the order dated 09.12.2022 of further investigation in the matter. He relying upon the judgment of the Apex Court in the case of Peethambaran vs. State of Kerala and Another, 2023 SCC OnLine SC 553 submits that the order of further investigation cannot be passed by the police authorities, it can be done only by the Court, therefore, order of non-bailable warrant dated 31.03.2023 and order dated 17.05.2023 U/s 82 Cr.P.C. are liable to be quashed. It is also argued that the applicant is suffering from cancer disease.
On the other hand, learned A.G.A. vehemently opposed the submission of learned counsel for the applicant by contending that from the vehicle of applicant, 18 quintal and 20 kg of ganja has been recovered. After submission of second charge-sheet dated 16.11.2022, it was revealed that Mr. Ashish Tyagi was the witness of arrest of accused persons, therefore, he could not be the investigating officer of the said case. Under these circumstances, an application dated 08.12.2022 was moved before Deputy Commissioner of Police (City) Commissionerate Agra seeking direction for further investigation by another investigating officer which was allowed 09.12.2022, hence, there is no illegality in the order dated 09.12.2022 in the light of judgment of the Apex Court in the case of Vinay Tyagi vs. Irshad Ali (2013) 5 SCC 762. It is also submitted that applicant did not participate in further investigation, therefore, non-bailable warrant dated 31.03.2023 was issued against him by the court and on his non-appearance, process under Section 82 Cr.P.C. was also issued by the court concerned on 17.05.2023.
Having heard the submission of learned counsel for the parties and perusing the record, I find that it is not disputed that the further investigation is going on in the matter pursuant to order dated 09.12.2022 of Commissioner of Police (City) Commissionerate Agra and the said order has not been challenged by the applicant in the instant application. I also find that applicant is owner of the vehicle, from which 18 quintal and 20 kg of ganja was recovered and on account of non participation of the applicant in further investigation, the order of non-bailable warrant dated 31.03.2023 was obtained by the investigating officer from the concerned court and further order dated 17.05.2023 under Section 82 Cr.P.C. has been issued by the court concerned, hence, I do not find any illegality or perversity in the same. So far as the judgment of the Apex Court in the case of Peethambaran vs. State of Kerala (Supra) is concerned, there is no dispute about the proposition laid down in the said judgment but the same is distinguishable on the facts of this case. In that case, final report was submitted and it was argued that in effect, a reinvestigation has been conducted. It is well settled that every case turns on its own facts and even a slightest difference in the facts of two cases may alter the entire aspects of the case.
In the light of above discussion, I do not find any good ground to interfere in the matter.
Accordingly, the relief as sought for by the applicant by means of this application is hereby refused.
However considering the submission of learned counsel for the applicant that the applicant is suffering from serious illness, the applicant is directed to surrender before the concerned court below within three weeks' from today and in case applies for bail, the bail application of the applicant shall be disposed of expeditiously by the courts below in accordance with law and keeping in view the guidelines as laid down by the Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another, reported in 2021 SCC OnLine SC 922.
For the period of three weeks' from today or till the moving of bail application by the applicant before the concerned court below, whichever is earlier,non-bailable warrant dated 31.03.2023 as well as order dated 17.05.2023 issued under Section 82 Cr.P.C. against the applicant shall be kept in abeyance.
With the above observations and directions, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 25.7.2023
Saurabh
