Allahabad High Court
Rahimunnisha & Another vs State Of U.P. Thru. Prin. Secy. Home. Lko ... on 2 December, 2021
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 11 Case :- U/S 482/378/407 No. - 2834 of 2021 Applicant :- Rahimunnisha & Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home. Lko & Another Counsel for Applicant :- Sadhu Sharan Chaubey,Abha Srivastava,Rajesh Kumar Singh,Salik Kr. Srivastava Counsel for Opposite Party :- G.A.,Shiv Pal Singh Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. This petition has been filed with the following main prayer:-
"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to pass an order thereby quashing the impugned charge-sheet as well as cognizance/ summoning order including order dated 11.02.2020, passed by learned 2nd Additional Civil Judge (JD) Judicial Magistrate Bahraich in Criminal Case No. 23/2015 arising out of Case Crime No. 666/2013 U/s 419/420/467/468/471. I.P.C P.S. Huzoorpur, District Bahraich, pending in the court of 2nd Additional Civil Judge (JD)/Judicial Magistrate Bahraich and also to quash the order dated 20.02.2021 passed by Learned Revisional Court / 6th Additional Session Judge, Bahraich, ( contained as Annexure no 1, 2, 10 &12 of petition) in order to meet the ends of justice."
2. It has been submitted by learned counsel for the petitioners Sri Salil Kumar Srivastava Assisted by Sri S. S. Chubey that the petitioners have been falsely implicated and the offence has not been made out in the evidence that has been collected by the Investigating Officer regarding the Sections under which charge sheet has been submitted to the VIIth Additional Civil Judge(Junior Division) Judicial Magistrate, Behraich in Criminal Case No. 23 of 2015, when the case was initially inquired into by the Investigating Officer, he submitted a final report in the Court but before the Court could pass any order thereon, the Superintendent of Police directed further investigation in the matter without jurisdiction and entrusted the inquiry/investigation to another police officer who took the statement of only the Branch Manager of the Bank concerned and filed a charge sheet in Court of which cognizance was taken by the learned trial court without application of mind.
3. The petitioners approached this Court initially by filing a petition challenging the FIR regarding to Case Crime No. 666 of 2013 under Sections 419, 420, 467, 468, 470, 471, 409, 323, 504, 506 I.P.C. Police Station Huzoorpur Distric Bahraich. This Court passed an order staying the arrest of the petitioners in Writ Petitioner No. 10783(MB) of 2013, till the report is submitted under Section 173 to the Court concerned.
4. Learned counsel for the petitioners submitted that the earlier Investigating Officer had recorded the statement of various witnesses including the complainant Rafique Ahmad as also Fakaroo, Mohd. Sabir, Rajjab and others under Section 161 of the Cr.P.C. and on the basis of evidence collected, he had recorded a categorical finding that no case for which the FIR was lodged can be said to have been made out. The Investigating Officer had also recorded a finding that since all the documents pertaining to the alleged forgery in original are in possession of Economic Offence Wing where the investigation is in progress, as such filing of charge sheet in the absence of documentary evidence is unwarranted. Resultantly, final report was filed by the earlier Investigating Officer.
5. Without taking permission of the Court under Section 173 (3) of the Cr.P.C. further investigation was directed by the Superintendent of Police and then an other Investigation Officer was entrusted with the job.
6. Learned counsel for the petitioner has pointed out paragraph 33 of the petition to say that superior officers of the police by invocation power under Section 173 (3) of the Cr.P.C. could not have directed further investigation and that power is reserved only with the Court and can be exercised pending the order of the Magistrate if an application for further investigation is made to the Magistrate, during consideration of such application, the superior officer of the police is empowered under Section 173 (3) Cr.P.C. to make further investigation, keeping in view the exigency of the situation.
7. Learned counsel for the petitioners submits that such orders could not have been passed by the superior officers of the police and it is being challenged by means of this petition.
8. Learned counsel for the petitioner further submitted that a charge sheet filed by the subsequent Investigating Officer upon which cognizance has been taken is also been challenged on the ground that the Investigating Officer has recorded the statement of only one witness namely, Ghanshyam Tripathi in the capacity of Branch Manager, who had not said anything in respect of forgery and cheating.
9. Learned counsel for the petitioners repeatedly stated that all the documentary evidence with regard to forgery is with the Economic Offences Wing and therefore charge sheet could not have been filed with out documentary evidence. However, learned counsel for the petitioner admits that on subsequent investigation the second Investigation Officer had recorded that no such case in respect of Section 409, 323, 504, 506 IPC were made out. He recorded a finding that offences only under Section 419, 420, 467, 468, 471 IPC are made out.
10. It has been submitted by the learned counsel for the petitioners that they again approached this Court by filing Criminal Misc. Case No. 2564 of 2016 under Section 482 of the Cr.P.C. which was disposed of by this Court by its order dated 30.07.2019 directing the petitioners to move appropriate discharge application through counsel before the court concerned and directed that such discharge application shall be considered within the time prescribed by the Court. The petitioner, thereafter, moved an application under Section 239 for discharge before the Magistrate concerned, which has been rejected by the order dated 11.02.2020 without application of judicial mind and without considering the material available in the case diary.
11. It has been further submitted by the learned counsel for the petitioners that the petitioners preferred a Criminal Revision No. 43 of 2020, namely, Rahimunnisha & another Vs. State of U.P. & another assailing the order passed by the learned Magistrate whereby he had rquired the application for discharge. The revisional court/Sixth Additional Sessions Judge, Behraich also rejected the revision.
12. It has been further submitted that the petitioner no.1 is a Safai Karmi and petitioner no.2 is a retired teacher he is blind and suffering from eyes trouble since 2010 and they have been erroneously and falsely implicated by the opposite party no.2.
13. Learned counsel for the petitioner has placed reliance upon the judgement rendered by the Hon'ble Supreme Court in, "Dilawar Balu Kurane vs. State of Maharashtra 2002 (2) SCC 135" to say that application of judicial mind is necessary while considering an order which is challenged. Learned counsel for the petitioner has placed reliance upon paragraph 4 of the judgement which in fact has been borrowed by the Hon'ble Supreme Court from its earlier judgement, "Union of India vs. Prafulla Kumar Samal 1979 (3) SCC 5".
14. It has been also argued by the learned counsel for the petitioners that a specific query was made by this Court when the case was taken up as fresh on 02.09.2021 to the learned AGA to seek instructions as to how initially final report was filed, then without intimating the learned Magistrate, further investigation was conducted by the police itself which was violation of Section 173 (3) Cr.P.C.
15. In the end after arguing for more than one hour, it has been submitted by the learned counsel for the petitioners that he has been served a copy of the counter affidavit filed by the opposite party no. 2 and he may be given time to file a rejoinder affidavit to the same. This submission was made at a time when a detailed hearing had already taken place and this Court was convinced that it was not a case under Section 173 (3) of the Cr.P.C. as it had come out from the record itself i.e. from the charge sheet submitted by the second Investigating Officer that a report regarding no case being made out was initially submitted by the first Investigating Officer to the Circle Officer concerned of the Police Station Huzoorpur. The Circle Officer had directed further investigation and entrusted the investigation to another Sub-Inspector. This fact has come out from the charge sheet itself that no final report/ finding was ever submitted to the learned trial court.
16. This Court has perused Section 173 of the Cr.P.C. on which the reliance has been placed by the learned counsel for the petitioners. Section 73 in its entirety is being quoted herein below:-
"173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and 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 under sub- section (2)."
17. It is evident from a perusal of Section 173 of the Cr.P.C. that is only when a report is submitted to the Magistrate concerned, and superior officer of the police finds that some further investigation is necessary, pending the orders of the Magistrate on the final report submitted, such superior officer can direct the Officer Incharge of the police station to make further investigation.
18. It is not the case of the petitioners that the police report was ever submitted before the Magistrate concerned, only the finding was recorded by the Investigating Officer in the case diary that since documentary evidence that was proposed to be relied upon was with the Economic Offences Wing, without original documents being there on record, he could not come to any conclusion regarding forgery being committed by the petitioners. The Circle Officer on submission of such report had decided that the matter required further investigation and a second Investigating Officer was appointed. The second Investigating Officer thereafter submitted a charge sheet in court.
19. It is relevant to note, in this case that after charge sheet was submitted to the learned trial court, the petitioners approached this Court challenging the charge sheet as well as cognizance taken thereon, and the entire criminal proceedings initiated on the basis of FIR. The Court rejected the contention raised by the learned counsel for the petitioners in its judgement and order dated 30.07.2019, which has been filed as annexure-09 to the petition.
20. Once this Court has rejected the challenge to the charge sheet, such a challenge could not be entertained afresh, even though learned counsel for the petitioners has argued upon the merit on the charge sheet before this Court again while arguing this petition. This Court is only concerned with the merits of the order passed on discharge application under Section 227 of the Cr.P.C. and also the order passed by the Sixth Additional Sessions Judge, Behraich rejecting the revision of the petitioners.
21. This Court has perused the order dated 11.02.2020 passed by the learned Magistrate on the discharge application moved by the petitioners. Learned Magistrate in the first two paragraphs of his order dated 11.02.2020 had noted that the petitioners in their discharge application have stated that the age of the petitioner no.1, namely, Rahimunnisha had been shown to be more than 60 years, on the basis of entry in the parivar register, on the basis of which she was being given old age pension and that the earlier Investigating Officer could not find evidence, and therefore submitted a final report, but further investigation was directed and the second Investigating Officer, thereafter, filed charge sheet without any evidence being available against the petitioner.
22. Learned trial court, thereafter, recorded the submission of the Public Prosecutor that the application for discharge was misconceived and should be rejected. Learned trial court has recorded its finding thereafter, saying that from a perusal of the paper book, it was evident that an application under Section 156 (3) Cr.P.C. was filed by one Rafique Ahmad, on which the trial court had directed Police Station Huzoorpur to register FIR and to investigate. After investigation charge sheet was submitted under Section 419, 420, 467, 468, 471 IPC. The applicants had argued that none of these sections were made out for the alleged offence, if any committed by them. The trial court, thereafter, observed that petition under Section 482 Cr.P.C., namely, Petition No. 2564 of 2016 had been filed by Rahimunnisha and Another where the High Court had rejected the contention in its order dated 30.07.2019 directing the petitioner to approach the learned trial court by moving discharge application which was to be decided within time as prescribed by the Court in its order. The learned trial court thereafter, observed that it is a settled law that for considering the discharge application only the facts as mentioned in the papers submitted by the prosecution had to be looked into. The sufficiency of the evidence could not be taken into account but only the prima facie case has to be shown to be made out by the prosecution.
23. Learned trial court, thereafter, observed that evidence cannot be analyzed at the stage of considering the discharge application. The case diary and the materials submitted alongwith the charge sheet had already been considered and cognizance taken by the court. Prima facie a case under Section 419, 420, 467, 468, 471 IPC was made out from the charge sheet. Learned trial Court, thereafter, rejecting the discharge application by its order dated 11.02.2020. The petitioners, thereafter, filed the Revision No. 43 of 2020.
24. This Court has considered the order passed by the learned Additional District and Sessions Judge dated 20.02.2021. The Revisional Court has first noted the arguments made by the counsel for the revisionist and also analyzed the papers on record, wherein the complaint/application under Section 156 (3) Cr.P.C. had stated that the petitioners were husband and wife, and petitioner no.1 was shown in the parivar register of the year 1995-1996, as having been born in 1940, and therefore, more than 60 years of age, and on the basis of such overwriting a medical certificate of a Doctor was filed, on the basis of which the petitioner no.1 was getting Old Age Pension for several years. The Shrawasti Gramin Bank Branch at Huzoorpur had shown in its Ledger on page dated 23.12.2005, at serial no. 138, the name of Rahimunnisha and Account No. 2446 wherein Rahimunnisha continued to draw Old Age Pension w.e.f. 2005, onward. Thereafter, the accused Rahimunnisha managed to get a different entry of Date of Birth mentioned in the Parivar Register as 1974 and showed herself to be 40 years of age on 01.07.2007, and took up service as Safai Karmi. The accused Rahimunnisha in fact had been drawing pension showing her age to be more than 60 years for several years before she showed herself to be 40 years of age and started working as Safai Karmi.
25. Certain allegations had been made in the application under Section 156 Cr.P.C. relating to the applicant being beaten up by the duo, husband and wife, and some money being taken out of his purse at one point of time, and being annoyed of which he had filed the application under Section 156 (3) Cr.P.C. before the learned trial Court. Learned revisional court, thereafter, noted the arguments raised by the learned counsel for the petitioners regarding the earlier Investigating Officer, namely, Mr. Ram Chand Singh not finding any evidence against the accused and the superior police officers rejecting the final report on their own and directing further investigation giving it to a second Investigating Officer, namely, Mr. Ram Murat Yadav. Mr. Ram Murat Yadav contacted the Gramin Bank Branch at Huzurpur and the Manager Ghanshyam Tripathi gave evidence regarding pension being deposited in the account of petitioner no.1 and after such deposit the same being withdrawn by Rahimunnisha.
26. The Revisional Court referred to the writ petition filed for quashing of FIR and the order passed thereon and also the petition filed under Section 482 of the Cr.P.C. and the observations made by the Court regarding the right of the accused to file appropriate discharge application. The Revisional Court considered the fact that there was evidence on record of the petitioner no.1 drawing Old Age Pension from the Bank account concerned, and thereafter working as Safai Karmi. The Revisional Court, thereafter, observed that under Section 239 Cr.P.C., the duty of the trial court is that of considering the discharge application, if any, moved by the accused and passing appropriate orders thereon, under Section 240 Cr.P.C. The trial court after hearing the accused and coming to the conclusion that prima facie case had been made out for framing of charge had thereafter framed charges against such accused. Learned trial court had considered the discharge application on its merit and also the charge sheet and had come to the conclusion that prima facie case had been made out against the petitioner.
27. The revisional court also referred to the settled law with regard to the duty of the trial court and the scope of exercise of its power while considering a discharge application. The revisional court also considered the arguments raised by the learned counsel for the petitioners that the original documents relating to irregularity in distribution of Old Age Pension were with the Economic Offences Wing, and therefore, the charge sheet could not have been filed on the basis of photo copies of such documents, and observed that it is only at the time of considering of evidence on detailed trial that original documents would be necessary and they can then be called for by the learned trial court concerned.
28. This Court has considered the submissions made by the learned counsel for the petitioners with regard to the judgement rendered by the Hon'ble Supreme Court in the case of Dilawar Balu Kurane (Supra), no doubt, the Hon'ble Supreme Court has observed in paragraph 12 as follows:-
"Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)]"
29. However the entire law on the subject has been considered and retreated, thereafter, in the judgement render by the Hon'ble Supreme Court State of Rajasthan Vs. Ashok Kumar Kashyap, 2021 SCC Online SC 314 Where the Supreme Court has observed as follows:-
"24. In the recent decision of this Court in the case of M.R. Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench has observed and held in paragraph 25 as under:
25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) "29.....At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
25. We shall now apply the principles enunciated above to the present case in order to find out whether in the facts and circumstances of the case, the High Court was justified in discharging the accused for the offence under Section 7 of the PC Act.
26. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional Jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not.-----As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered.------ As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible."
30. Accordingly, this Court does not find any infirmity in the orders impugned. This petition stands rejected.
Order Date :- 2.12.2021 Darpan Sharma