Guddu @ Wasim And 4 Others vs State Of U P And Another
2023 Latest Caselaw 26918 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:190864
 
Court No. - 81
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 603 of 2023
 
Petitioner :- Guddu @ Wasim And 4 Others
 
Respondent :- State Of U P And Another
 
Counsel for Petitioner :- Rakesh Kumar Shukla
 
Counsel for Respondent :- G.A.
 
along with
 
Case :- MATTERS UNDER ARTICLE 227 No. - 9470 of 2022
 
Petitioner :- Naeem Beg And 3 Others
 
Respondent :- State Of U P And Another
 
Counsel for Petitioner :- Rakesh Kumar Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Mr. Rakesh Kumar Shukla, learned counsel for the petitioners and Mr. Rajesh Kumar Gupta, learned A.G.A. for the State and perused the materials on record.

2. This is noteworthy that petitioners did not take appropriate steps for issuance of notices despite orders of this Court. Hence, respondent no.2 has not been served.

3. The relevant facts are as follows:

(i). The respondent no.2 lodged an F.I.R. Crime No. 1653 of 2018 under sections 147, 148, 152, 342, 352, 324 I.P.C. naming the petitioners, with the allegation that ten to twelve persons intruded in her house, took her husband and children as hostage. They physically assaulted them at gun point and caused them injuries with sharp edged weapons and lathi. Her husband has been admitted in I.C.U. in government hospital. After investigation, the charge sheet has been submitted against nine accused persons under sections 147, 148, 452, 342, 352, 324 I.P.C.

(ii) From the side of the complainant, an application was filed before the trial court for taking cognizance under additional sections 308 and 307 I.P.C., besides the offences mentioned in the charge sheet. The learned trial court heard the matter and passed an order on 21.09.2020 taking cognizance under section 190(1)B of Cr.P.C. adding sections 308/307 I.P.C. and passed an order of issuance of summons against the accused persons.

(iii) The order dated 21.09.2020 passed by the learned trial court was challenged by filing a criminal revision i.e Criminal Revision No. 182 of 2022 by one of the accused Naeem Beg. It may be noted here that rest of the accused persons against whom the cognizance was also taken, did not challenge that order by filing any revision. It is worth mention that Naeem Beg is one of the petitioners in the petition no. 9470 of 2022 only.

(iv) Learned revision court below, after hearing both the sides, dismissed the revision by an order dated 26.08.2022. Now, all the petitioners are before this Court challenging the validity of the order passed by the trial court as well as the revisional court. by means of this petition under Article 227 of Constitution of India.

4. The main contention of the petitioners is that the complainant/first informant could not have produced any documentary evidence at the stage of cognizance. In case, any documentary evidence is produced at the stage of cognizance, the same could not have been taken into consideration by the trial court as it never formed part of case diary. Next it is submitted that the first informant filed a C.T. Scan report prepared at a private hospital i.e. Silver Cross Hospital and Trauma Center, dated 27.11.2018. In fact, the injured was examined at Government hospital and his C.T. Scan was also done by the Government Medical Officer, Dr. Sharad Jain. The C.T. Scan report dated 19.11.2018 was prepared by him. It is vehemently contended by the petitioners that there is material difference between the two C.T. Scan reports. The subsequent C.T. Scan report dated 27.11.2018 is forged and fabricated document hence, courts could never have taken into consideration such papers. In this view of the matter, the cognizance order and the order of the revisional court are not sustainable in the eye of law and the same are liable to be set aside by this Court. My attention has also been drawn to the paragraph no.8 of the counter affidavit which mentions certain letter dated 18.07.2019 of Dr. Sharad Jain purportedly addressed to Senior Superintendent of Police saying that fabricated injury reports were prepared.

5. I perused the papers on record. Admittedly, the order taking cognizance against the accused was passed on 21.09.2020, taking into consideration the prosecution papers as also certain papers filed by the complainant/first informant which included the C.T. Scan report dated 27.11.2018. It may be mentioned that there is no controversy that sections 307/308 I.P.C. were added at the time of taking cognizance and not at any subsequent stage. The controversy exists only around the fact whether the papers which were not part of case diary, could be produced by the first informant at that stage and whether they could be relied upon by the court or not. The submission of the petitioners is that papers were forged and fabricated and that they could not be taken into consideration.

6. The perusal of the papers on record shows that C.T. Scan report dated 19.11.2018 prepared under the signature of Dr. Sharad Jain, was already part of case diary. The aforesaid C.T. Scan report (Pg-50) is on record which shows presence of linear non-depressed fracture of right temporal bone. The disputed C.T. Scan report which bears date 27.11.2018, prepared by a private hospital again shows that there was a linear non-depressed fracture of right temporal bone. Obviously there is no material difference between the two medical reports. Latter medical report also bears the date of admission as 21.11.2018, suggestive of the fact that the patient was admitted to a private hospital, just two days after his first C.T. Scan was done at government hospital.

7. There is vehement argument from the side of the petitioners that paragraph no.8 of the counter affidavit says that the C.T. Scan report prepared by private hospital was fabricated paper. I went through the paragraph 8 of the counter affidavit, which is as below:

"8. That it is further relevant to point out that the letter dated 18.07.2019 of Dr. Sharad Jain addressed to the Senior superintendent of Police, Meerut that the said injury is fabricated. During course of further investigation, investigating officer has recorded the statement of Dr. Sharad Jain who informed that he conducted C.T. Scan and he submitted its report. Investigating officer has also recorded finding that he made several calls to the first informant to ascertain the genuineness of the C.T. Scan and for collecting the original report, but the same has not been given. Copy of S.C.D. Parcha No.5 is being filed herewith and marked Annexure-1 to this affidavit. Investigating officer after collection of credible evidence has rightly submitted charge sheet under sections 147, 148, 452, 342, 352, 324 I.P.C. on 08.04.2019."

This paragraph mentions a letter written by Dr. Sharad Jain, the author of C.T. Scan Report dated 19.11.2018 of Government hospital. The copy of letter of Dr. Jain is on record (paper no.53). Perusal of this paper shows that the medical officer Dr. Sharad Jain simply informed the police authorities that the C.T. Scan report dated 19.11.2018 bears his signature and was prepared by him but another C.T. Scan report which was shown to him by I.O. was never prepared by him. In my view, this letter/intimation by Dr. Sharad Jain can never be construed to mean that the subsequent C.T. Scan dated 27.11.2018, was false and fabricated. It is difficult to understand why such a statement has been given in the counter affidavit. Apparently, an attempt has been made to impart a different hue to a simple fact. The deponent has taken a stand which is not supported from the papers on record. There is something more than which meets the eye. The deponent owes an explanation in this regard. .

8. As far as genuineness of the subsequent C.T. Scan report prepared by a private hospital, its evidentiary value, its ultimate impact on the merits of the case etc. are concerned that can appropriately be decided at the stage of final judgment. Branding a paper received from a vigilant complainant as forged and fabricated, is not called for at the stage of taking cognizance. Especially, when there is nothing to suggest the same.

9. Even if, the C.T. Scan report dated 27.11.2018 is taken off the record, the first C.T. Scan report in my view, is sufficient for taking cognizance under Sections 308/307 I.P.C. The nature of the injuries as mentioned in the medical report, read with the C.T. Scan report dated 19.11.2018 do not support the submissions of the petitioners. The very basis of this petition is that a forged and fabricated C.T. Scan report was prepared but I do not find any substance in such submissions. In my opinion, in a criminal trial, the first informant is never out of picture. His voice cannot be stifled on technical grounds. The trial court is at liberty to take cognizance under appropriate sections of the I.P.C. and it is not bound by what is mentioned in the charge sheet alone or by the opinion of I.O. The trial Judge is, in fact duty bound to find out what offence is prima facie made out, by making his own assessment.

10. Another objection has been raised by learned A.G.A. that the petition no. 603 of 2023 has been filed by five petitioners and none of them was party to the Criminal Revision No. 182 of 2022, hence, they cannot challenge the order passed in criminal revision. Similarly, in petition no. 9470 of 2022, petition has been filed by four petitioners, including Naeem Beg. Rest of the petitioner no.s 2, 3 and 4 never challenged the summoning order by filing any criminal revision. Only one of them Naeem Beg filed the criminal revision, therefore, rest of the petitioner cannot raise any grievances against the order of revisional court.

11. In reply to the above objections, it is argued on behalf of the petitioners who were admittedly not party to the Criminal Revision No. 182 of 2022, that there is no bar against them for raising their grievance against a summoning order by invoking jurisdiction of the court under Article 227 of Constitution of India, even though, they never challenged the order of revisional court. It is further argued that as revisional court had upheld the summoning order therefore, their interest was impliedly at stake. Even if, they had challenged the summoning order by filing a separate revision, the revisional court could not have taken a view, different from that which was given in Criminal Revision No. 182 of 2022. Therefore, they did not propose to challenge the order passed in revision by filing a separate revision.

12. In my view, even though, the order of the revision was not challenged by rest of the petitioners, it puts no bar on them to challenge the original summoning order by invoking the powers of this Court under Article 227 of Constitution of India.

13. The petition lacks merit and is dismissed.

14. A copy of this order shall be sent to S.S.P., Meerut for necessary action in the light of observation in para 7 of this order.

15. Copy of order be also notified to the court concerned.

Order Date :- 4.10.2023

Sumit Kumar