Allahabad High Court
Dhanraj Meena vs State Of U.P. And Another on 17 March, 2023
Bench: Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- APPLICATION U/S 482 No. - 43676 of 2022
Applicant :- Dhanraj Meena
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sanjeev Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Shiv Shanker Prasad,J.
Heard Mr. Sanjeev Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.
Challenge in this application under Section 482 Cr.P.C., is to the order dated 5.8.2022 passed by Additional Chief Judicial Magistrate-II, Gorakhpur in Crl. Case No. 533 of 2016 (State Vs. Subhash Dubey and Others) arising out of Case Crime No.59 of 2015, under Section 147, 332, 353, 427, 504, 506 I.P.C. and Section 7 Crl. Law Amendment Act, Police Station Shahpur, District Gorakhpur whereby the discharge application filed by applicant has been rejected.
Record shows that initially the police had submitted a report under Section 173(2) Cr.P.C. (charge sheet) dated 16.5.2015. Subsequently, the Investigating Officer in exercise of jurisdiction under Section 173(8) Cr.P.C. further investigated the matter and submitted a police report dated 20.3.2017 (final report) whereby it was stated that criminality alleged against the applicant is not found to be established.
In view of above, applicant filed a discharge application before court below dated 24th January, 2022 seeking his challenge which has been rejected by court below by means of impugned order dated 5.8.2022.
Perusal of impugned order dated 5.8.2022 passed by court below will go to show that court below has rejected the discharge application on the ground that since cognizance has already been taken upon first charge sheet, therefore, no ground exists to consider the discharge application filed by the applicant.
What shall be the procedure followed by courts upon submission of two different police reports, in same case crime number is no longer res integra and stands settled by the judgment of the Supreme Court in Vinay Tyagi Vs. Irshad Ali @ Deepak and Others reported in (2013) 5 SCC 762. The relevant paragraphs are as under:
?Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore-noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.
40. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct ?further investigation? on presentation of a report in terms of Section 173 (2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173 (8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct ?further investigation? to clear its doubt and to order the investigating agency to further substantiate its charge sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct ?further investigation? or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct ?further investigation? or ?re-investigation? as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation.?
In view of the law laid down by the Supreme Court as noted above the discharge application filed by the applicant was misconceived. The Court is now under an obligation to decide the two police reports simultaneously and then discharge the accused in case the offence complained of is not established as per the papers accompanying the police reports or proceed against the applicant in case it is established.
Thus no illegality has been committed by Court below in rejecting the discharge application.
Court below shall now pass a fresh order in the light of law noted above within a period of four weeks from the date of production of certified copy of this order.
With the aforesaid observation this application stands disposed of.
(Shiv Shanker Prasad, J.)
Order Date :- 17.3.2023
Sushil/-
