Nabil Ahmad And2 Others vs State Of U.P. And Another
2023 Latest Caselaw 19784 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:152871
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 18687 of 2023
 

 
Applicant :- Nabil Ahmad And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amit Rana
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants and learned A.G.A. for the State.

2. The present applicants have invoked the inherent power of this Court under Section 482 Cr.P.C. assailing the order dated 03.11.2022, rejecting application (Paper No.15A) moved on behalf of the present applicants (accused) passed in Criminal Case No.7038 of 2021 arising out of Case Crime No.0535 of 2021, under Sections 323, 324, 325, 504, 506, 308 IPC, Police Station Chandpur, District Bijnor.

3. Facts culled out from the averments made in the present application are that with respect to the incident dated 30.08.2021 an FIR, being Case Crime No.535 of 2021 dated 30.08.2021 has been lodged by opposite party No.2. After due investigation, Investigating Officer has submitted the charge sheet dated 13.09.2021 against the accused persons under Sections 323, 324, 325, 308, 504 and 506 IPC. Having considered the charge sheet, learned trial court has passed cognizance/summoning order dated 11.11.2021. At a later stage, first informant has moved an application for re-investigation. The Superintendent of Police has passed an order for re-investigation of the alleged crime. The Investigating Officer has submitted a supplementary charge sheet dated 19.04.2022, showing the offence under previous sections except Section 308 IPC. On the basis of supplementary charge sheet accused persons have moved an application (Paper No.15A) to recall the cognizance/summoning order dated 11.11.2021, which was passed on the basis of the first charge sheet dated 13.09.2021, on the ground that in the supplementary charge sheet Section 308 IPC has been removed, therefore, fresh cognizance may be taken averting the Section 308 IPC. Learned trial court has rejected the application, vide order dated 3.11.2022, on the ground that once the cognizance has been taken, vide order dated 11.11.2021, there is no provision to recall the same and pass a fresh cognizance order.

4. Learned counsel for the applicants submits that there is no justification to initiate criminal proceedings against the present applicants under Section 308 IPC, inasmuch as in supplementary charge sheet dated 19.04.2022 offence under Section 308 IPC has not been shown to be made out against the present applicants. It is further submitted that, in case, previous summoning order dated 11.11.2021 is not recalled and fresh order is not passed, the applicants would suffer and face consequences under Section 308 IPC, which was mentioned in the first charge sheet dated 13.09.2021. It is further submitted that the present applicants cannot be forced to face trial in the section which has been struck off in the subsequent/supplementary charge sheet dated 19.04.2022. It is next submitted that the order impugned dated 3.11.2022 is illegal and unwarranted under the law, as such, the present application is liable to be quashed.

5. Per contra, learned A.G.A. has contended that there is no provisions in Cr.P.C. to recall the cognizance/summoning order which has initially been passed after considering the charge sheet submitted by the Investigating Officer. It is further contended that so far as the subsequent/supplementary charge sheet dated 19.04.2022 is concerned, the present applicants (accused) have still an opportunity to raise an objection at the time of framing of charges and the learned trial court has ample power to modify or amend the charges under Section 216 Cr.P.C. It is next contended that the learned trial court has rightly rejected the application for want of jurisdiction, therefore, there is no force in the instant applicant and same is liable to be rejected being misconceived and devoid of merits.

6. Having considered the rival submissions advanced by the learned counsel for the applicants as well as learned AGA and perusal of record, it reveals that cognizance/summoning order dated 11.11.2021 has been passed after considering the chargesheet dated 13.9.2021. However, subsequent chargesheet dated 19.4.2022 has been filed without mentioning Section 308 IPC. Present applicants (accused) have moved application with the prayer that fresh cognizance order may be passed averting Section 308 IPC. Learned trial court has rightly rejected the application (paper 15 Aa) moved on behalf of the present applicants intending to recall the previous summoning order dated 11.11.2021 and to pass fresh order on the basis of subsequent chargesheet. In CrPC, there is no provision to recall the cognizance/summoning order passed by the learned Magistrate after going through the police report coupled with the material available on record. The previous chargesheet dated 3.9.2021 was positive with respect to the offence under Section 308 IPC, however, the supplementary chargesheet was negative with respect to the said offence under Section 308 IPC. Under Sub-Section 2 of Section 173 CrPC, there is a provision of submitting a police report by the officer in-charge of the police station after completion of the investigation. In furtherance thereof, Sub-Section 8 of Section 173 CrPC denotes a step ahead qua further investigation, in which respect the provision as enunciated under Sub-Section 2 to Sub-Section 6 of Section 173 (2) CrPC has been made applicable. Learned Magistrate has to go through both the reports in deciding the offence against the accused. Hon'ble Supreme Court while deciding the case of Vinay Tyagi Vs. Irshad Alia alias Deepak (2013) 5 SCC 762 has expounded that both the reports should be read conjointly. Ratio decided by Apex Court in the case of Vinay Tyagi (supra) has been relied upon in the case of Luckose Zachariah. Relevant paragraphs No. 12, 13, 15 and 16 of the judgment passed by Hon'ble Supreme Court in the case of Luckose Zachariah @ Zak Nedumchira Luke and Others vs. Joseph Joseph and Others in Criminal Appeal No. 256 of 2022 in SLP (Crl) No. 9556 of 2021 referring aforesaid judgment are quoted hereinbelow:

"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'. 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 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."

15. The Sessions Judge was justified in setting aside the order of the Magistrate for the simple reason that after the supplementary report submitted by the investigating officer, the Magistrate was duty bound in terms of the dictum in paragraph 42 of the decision in Vinay Tyagi (supra), as well as the subsequent three-judge Bench decision in Vinubhai Haribhai Malaviya (supra) to consider both the original report and the supplementary report before determining the steps that have to be taken further in accordance with law. The Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence... ... ... ...

16. In view of the clear position of law which has been enunciated in the Judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra). it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence... ... ... ..."

7. In this conspectus, as above, I do not find any justifiable ground to interfere in the order impugned passed by the learned Magistrate in rejecting the application moved by the present applicants. There is no abuse of the process of law or any justifiable ground to pass an order to secure the ends of justice in exercise of inherent jurisdiction of this Court under Section 482 CrPC.

8. Resultantly, the instant application, being misconceived and devoid of merits, is dismissed with no order as to the cost.

Order Date :- 31.7.2023

vinay/Mini