Deepali Agarwal vs State Of U.P. And Another
2023 Latest Caselaw 9068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 
Case :- APPLICATION U/S 482 No. - 10271 of 2023
 
Applicant :- Deepali Agarwal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Alok Singh,Ajay Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Ajay Kumar Pandey, learned counsel for the applicant as well as learned A.G.A and perused the records.

The instant 482 Cr.P.C. application is being filed exploiting the plenary power of this Court to quash the impugned order dated 20.02.2023 and 01.03.2023 whereby application for further investigation under section 173(8) Cr.P.C. and seeking discharge under section 227 of Cr.P.C. were turned down by the concerned court and by the subsequent order dated 01.03.2023, learned trial Judge has framed the charges against the applicant under section 302 and 120B IPC and have added Section 3(2)V of SC/ST Act against the applicant. In addition to this, the entire proceeding of S.T. no.1797 of 2022 arising out of case crime no.434 of 2022, police station-Tajganj, District-Agra pending in the court of learned Additional Sessions Judge, Court No.1, Agra is under judicial scrutiny.

Sri Satish Trivedi, learned Senior Counsel has advanced his arguments by making a mention that the applicant is a lady and practicing doctor. Initially, the FIR was registered by one Surendra Singh under sections 302 and 34 IPC against Aakash Gautam, six unknown persons and two unknown ladies in which one Ritika was eliminated by the named accused persons. It is further contended that the applicant is not named in the FIR but her name figured up during investigation and accordingly, charge sheet was submitted against the applicant only under section 302 and 120B IPC. It was candidly submitted by learned Senior Counsel that in the charge sheet, there is no whisper regarding any penal provision of SC/ST Act.

After being bailed out, applicant has moved three applications i.e. application 5-B under section 173(8) Cr.P.C. for holding further investigation into the matter, application 6-B and 15-B under section 227 of Cr.P.C. By a composite order dated 20.02.2023, learned Additional Sessions Judge, Court No.1, Agra have rejected the prayer sought for further investigation as well as discharge application.

On 01.03.2023, learned Additional Sessions Judge, Court No.1, Agra has framed the charges against the present applicant under section 302 read with Section 120B IPC as well as Section 3(2)(V) of SC/ST Act and have directed that the Judge concern shall hear the matter :

"???? 3(2)(v) SC/ST Act ?? ??????? ?????? ?? ?? ?? ???????? ?? ?????????? ??? ??. ??? ?????? ??????? ???? ???? ?? ?? ??????? ???? ?? ??? ???? ?????? ?? ???????? ?????? ???? ????."

Learned Senior Counsel has assailed the framing of the charge on the ground :(i) that police after investigation has collected the sufficient material which prima facie attract Section 302 and 120 IPC against the applicant and thus, submitted the report under Section 173(2) Cr.P.C. under the aforesaid sections of IPC. There is not a single whisper with regard to the applicability of Section 3(2)(V) of the SC/ST Act in the entire case diary against the applicant-Deepali Agarwal; (ii) It is next contended that addition of penal provision under the SC/ST Act against the applicant has come out of the blue and without any material on record. In this context, learned counsel for the applicant has relied upon the judgment of Hon'ble the Apex Court in the case of State of Gujrat Vs. Girish Radhakishan Varde, part of which is quoted hereinbelow :-

"Section 190(1) of the Cr.P.C. contains the provision for cognizance of offences by the Magistrates and it provides three ways by which such cognizance can be taken which are reproduced hereunder:-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) upon a police report in writing of such facts--that is, facts constituting the offence--made by any police officer;

(c) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed.

An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such. facts made by any police officer it is a case instituted in the Magistrate's court on a police report. The scheme underlying Cr.P.C. clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to the court.

12. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 of the Cr.P.C. and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII of the Cr.P.C. and thereafter chargesheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the chargesheet appears to have entertained an application of the complainant for addition of three other sections into the chargesheet, completely missing that if it were a complaint case lodged by the complainant before the magistrate under Section 190 (a) of the Cr.P.C., obviously the magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of the enquiry, the magistrate thought it appropriate that other additional sections also were fit to be included, the magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the magistrate and then the matter would be committed for trial before the appropriate court.

14. 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."

Thus, relying upon the aforesaid judgment, learned Senior Counsel submits that the learned trial Court has traveled beyond what has been investigated by the police and the charge sheet was submitted by the police. The addition and substraction of the provision can only be made by the trial Judge under section 216 and 218 Cr.P.C.

In addition to above, it is also submitted by the applicant that the court has exceeded its jurisdiction by framing of the charges under section 3(2)(V) of SC/ST Act. In addition to this, it is also urged by learned counsel for the applicant that learned Additional Sessions Judge, Court No.1, Agra has committed apparent judicial fallacy to try the case of its own when he himself has added the penal provision of SC/ST Act among array of sections. In all fairness, he ought to have transferred the case to the Special Judge, SC/ST Act dealing and deciding the case related to SC/ST Act and on these grounds, framing of the charge is apparently fallacious and deserves to be quashed.

Section 3(2)(v) of the SC/ST Act reads thus :-

"Section 3(2)(v) in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;

So far as framing of Section 3(2)(V) of SC/ST Act is concerned, it is urged by learned Senior Counsel that this section would not apply ipso facto. This fact gains importance when the applicant is not even named in the FIR.

In this regard, learned counsel for the applicant has relied upon the judgment of XXXX VS. State of Kerala reported in 2022 Livelaw (Ker) 557 in which the Kerala High Court, in so many words has opined that in order to attract the offence punishable under section 3(2)(v) of SC/ST Act, the accused must not be a member of SC/ST community and must be shown to have committed the offence with the knowledge about the victim's caste/community. In the absence of averment to that effect, offence under section 3(2)(v) of SC/ST Act would not attract.

Thus, it is contended that where the applicant is not named in the FIR, and her name has figured up during investigation including the fact that the applicant has got no knowledge or information about the caste of the decease, applicability of Section 3(2)(v) of SC/ST Act is per se not in consonance with the various legal verdict and is liable to be quashed.

From the perusal of the impugned order dated 01.03.2023, after framing of the charge under the SC/ST Act, learned trial Court has mentioned that :-

"??? ?????? ??????? ???? ???? ?? ?? ??????? ???? ?? ??? ???? ?????? ?? ???????? ?????? ???? ????."

Thus, the Additional Sessions Judge, Court no.1, Agra is not empowered to frame the charge under the SC/ST Act, and the Special Judge, SC/ST Act has a right to frame the charges and try the case thereafter.

Per contra, learned A.G.A. has opposed the contention advanced by learned Senior counsel but could not dispute the aforesaid legal fallacy.

After hearing the rival submissions, I am of the considered opinion that the order of framing of the charge dated 01.03.2023 has traveled beyond the jurisdiction as mentioned in the judgment of Hon'ble the Apex Court in the case of Girish Radhakishan Varde(supra).

Under the circumstances, I have got no hesitation to quash the orders of framing of the charge dated 01.03.2023 and the matter is remanded back for fresh consideration by the concerned court. It is open for the applicant to move an appropriate application under section 216 Cr.P.C. while framing of the fresh charge and the court concerned shall give an opportunity of hearing to the applicant and the public prosecutor and decide the same within a period of four weeks from the date of filing of the application.

With the aforesaid observations, the present application stands disposed of.

Order Date :- 28.3.2023/Sumit S