Mohit vs State Of U.P. And Another
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Allahabad High Court

Mohit vs State Of U.P. And Another on 3 January, 2025

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:1164
 
Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 31139 of 2024
 

 
Applicant :- Mohit
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Mohd. Naushad,Noor Ahmed
 
Counsel for Opposite Party :- G.A.,Mohd. Akbar Shah Alam Khan
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Mohd. Naushad, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Miss Saumya Dwadas Shreeni, Advocaste, holding brief of Mr. Mohd. Akbar Shah Alam Khan, the learned counsel representing first informant-opposite party-2.

2. Perused the record.

3. This application under Section 482 Cr.P.C. has been filed by accused-applicant-Mohit challenging the charge sheet/police report No. A of 2021 dated 09.08.2021 submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C. in Case Crime No. 176 of 2020, under Sections 363, 366, 376(C) IPC and Sections 3/4(2) POCSO Act, Police Station-Adarsh Mandi, District-Shamli, the Cognizance Taking Order dated 14.09.2021 and the Summoning Order dated 15.09.2021 passed by Additional District and Sessions Judge/Special Judge (POCSO Act), Shamli in Consequential Special Case No. 318 of 2021 (State Vs. Mohit), under Sections 363, 366, 376(C) IPC and Sections 3/4(2) POCSO Act, Police Station-Adarsh Mandi, District-Shamli as well as the entire proceedings of aforementioned Sessions Case.

4. Record shows that initially in respect of an incident, which is alleged to have occurred on 01.06.2020, a delayed FIR dated 03.06.2020 was lodged by first informant-Kurban i.e. father of the prosecutrix and was registered as Case Crime No. 0176 of 2020, under Sections 363, 366 IPC, Police Station-Adarsh Mandi, District-Shamli. In the aforesaid FIR, 2 persons namely - (1) Mohit (applicant herein) and (2) Ankit have been nominated as named accused.

5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by Investigating Officer, during course of investigation, he came to the conclusion that no offence as alleged to have been committed by present applicant is established. Accordingly, Investigating Officer exculpated the present applicant in the charge sheet/police report dated 15.09.2020 submitted by him in terms of Section 173(2) Cr.P.C. The copy of said report is on record as Annexure-5 to the affidavit filed in support of present application. However, instead of filing a protest petition against aforementioned police report/charge sheet dated 15.09.2020, in the light of the law laid down by the Apex Court in the case of Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537, the first informant-opposite party-2 approached this Court by means of Criminal Misc. Writ Petition No. 9454 of 2020 (Kurban Vs. State of U.P. and 4 Others), which was disposed of finally, vide order dated 21.09.2020. For ready reference, the order dated 21.09.2020 is reproduced herein under:-

"Heard Sri Mritunjay Singh, learned counsel for the petitioner; learned AGA for the respondents 1 to 3 and perused the record.

The instant petition seeks a direction upon the State-respondents to ensure proper investigation in Case Crime No. 176 of 2020, registered at P.S. Adarsh Mandi Shamli, district Shamli, under sections 363, 366, 376 IPC and section 3/4 Pocso Act.

The apex court in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, held as follows:

"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3.We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation."

The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) CrPC has also been recognized in the decision of the apex court in the case of T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu's case (supra) it has been observed as follows:

"12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)"

In view of the law noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the apex court as noticed above."

6. Subsequent to the above order dated 21.09.2020, the first informant-opposite party-2, instead of approaching the Magistrate, approached the police authorities for further investigation in exercise of jurisdiction under Section 173(8) Cr.P.C. It is not evident from the record as to whether upon submission of police report/charge sheet dated 15.09.2020, cognizance was taken upon same by Court concerned and if so on what date and whether the Investigating Officer obtained the permission of Court before proceeding with further investigation of concerned case crime number against present applicant under Section 173(8) Cr.P.C. in view of the law laid down by Apex Court in the case of Vinubhai Haribhai Malviya Vs. State of Gujrat, (2019) 17 SC 1 and in exercise of jurisdiction under Section 173(8) Cr.P.C. However, Investigating Officer conducted further investigation and thereafter, submitted the supplementary charge sheet/police report dated 09.08.2021, whereby applicant has been charge sheeted under Section 363, 366 IPC only. Court below in exercise of jurisdiction under Section 190(1)(b) Cr.PC., took cognizance upon aforementioned supplementary police report/charge sheet, vide Cognizance Taking Order dated 14.09.2021 and thereafter, vide Summoning Order dated 15.09.2021, has summoned the applicant under Sections 363, 366, 376(C) IPC and Sections 3/4(2) POCSO Act.

7. Learned counsel for applicant submits that the Cognizance Taking Order dated 14.09.2021 as well as Summoning Order dated 15.09.2021 passed by Court below are manifestly illegal and therefore, liable to be quashed by this Court. He firstly contends that against the applicant, there were two charge sheets/police reports i.e. dated 15.09.2020 and 09.08.2021. In view of the law laid down by Apex Court in Vinay Tyagi Vs. Irshad Ali @ Deepak and Others,(2013) 5 SCC 76, as affirmed in Luckose Zachariah @ Zak Nedumchira Kuke and Others Vs. Joseph Joseph and Others, 2022 SCC OnLine SC 241, the Court concerned was required to consider both the police reports together and thereafter, passed an order in terms of Section 190(1)(b) Cr.P.C. if warranted in the facts and circumstances of the case. The above procedure having not been followed by the Court below renders the orders impugned to be illegal.

8. It is next contended by the learned counsel for applicant that applicant was charge sheeted only under Sections 363 and 366 IPC. However, Court, while passing the Cognizance Taking Order dated 14.09.2024 has taken cognizance under Sections 363, 366, 376(C) IPC and Sections 3/4(2) POCSO Act against applicant. Referring to the judgment of Supreme Court in State of Gujrat Vs. Girish Radhakrishnan Varde (2014) 3 SCC 659, he submits that the Court, while taking cognizance upon the police report in terms of Section 190(1)(b) Cr.P.C., can neither increase nor decrease the charging Sections mentioned in the charge sheet/police report. As such, the Cognizance Taking Order dated 14.05.2021 cannot be sustained in law and therefore, liable to be quashed by this Court. On the above premise, it is thus urged by the learned counsel for applicant that present application is liable to be allowed.

9. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. He submits that no illegality or infirmity can be attached to the order impugned passed by Court below. However, the learned A.G.A. could not dislodge the legal/factual submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Miss Saumya Dwadas Shreeni, the learned counsel representing first informant-opposite party-2.has also joined the submissions urged by the learned A.G.A. She, however, submits that the prosecutrix is an innocent girl of tender age, aged about 15 years. In view of the aforesaid peculiar facts and circumstances of the case, no illegality or infirmity can be attached to the orders impugned in present application. Apart from above, it is also contended by the learned counsel representing first informant-opposite party-2 that the entire order sheet of the criminal case pending before Court below nor the statement of the prosecutrix as recorded under Sections 161 and 164 Cr.P.C. have been brought on record. In the absence of aforesaid material, the veracity of the orders impugned in present application cannot be effectively considered by this Court. She, therefore, contends that in view of above, the present application is liable to be dismissed.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that it is an undisputed fact that initially the police report dated 15.09.2020 was submitted against applicant by the Investigating Officer in terms of Section 173(2) Cr.P.C., whereby applicant was exculpated of the charges mentioned against him in the FIR. It is also an admitted fact that on the approach made by the first informant, further investigation was conducted by the Investigating Officer. However, it is not evident from the record as to whether upon submission of aforementioned police report dated 15.09.2020, whereby, applicant was exculpated, whereas the other accused was charge sheeted, cognizance had been taken by Court below or not. In case, the cognizance had already been taken by Court below, the Investigating Officer could not have proceeded with further investigation in concerned case crime number without obtaining prior permission of the Court concerned in the light of the law laid down by the Apex Court in Vinubhai Haribhai Malviya (Supra). Furthermore, after the police report dated 09.08.2021 was submitted by the Investigating Officer against applicant, there were 2 police reports i.e. the police reports dated 15.09.2020 and 09.08.2021 regarding applicant before Court below. Therefore, by virtue of the law laid down by the Apex Court in the case of Vinay Tyagi (Supra), as affirmed in the case of Luckose Zachariah @ Zak Nedumchira Kuke and Others (Supra), the Court concerned could not have proceeded to take cognizance without simultaneously considering both the police reports. The said procedure also has not been followed by Court below.

12. From perusal of the impugned Cognizance Taking Order, the Court finds that Court concerned has taken cognizance under Sections 363, 366, 376(C) IPC and Sections 3/4(2) POCSO Act, whereas the charge sheet/police report was submitted against applicant only under Sections 363 and 366 IPC. In view of the law laid down by the Apex Court in State of Gujrat Vs. Girish Radhakrishnan Varde (Supra), the Court while exercising jurisdiction in terms of Section 190(1)(b) Cr.P.C., can neither increase nor decrease the charging Sections mentioned in the police report/charge sheet. The impugned Cognizance Taking Order, therefore, cannot be sustained.

13. In view of the discussion made above, the present application under Section 482 Cr.P.C. succeeds and is liable to be allowed.

14. It is, accordingly, allowed.

15. The impugned Cognizance Taking Order dated 14.09.2021 and Summoning Order dated 15.09.2021 passed by Additional District and Sessions Judge/Special Judge (POCSO Act), Shamli in Special Case No. 318 of 2021 (State Vs. Mohit) arising out of Case Crime No. 176 of 2020, under Sections 363, 366, 376(C) IPC and Sections 3/4(2) POCSO Act, Police Station-Adarsh Mandi, District-Shamli are, hereby, quashed.

16. The matter shall stand remitted to Court concerned for passing a fresh Cognizance Taking Order/Summoning Order in the light of observations made herein above. The necessary exercise shall be undertaken by Court below within a period of one month from the date of presentation of a certified copy of this order.

Order Date :- 3.1.2025

Vinay