Allahabad High Court
Parvez Shahjahan And 4 Others vs State Of U.P. And Another on 24 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 16.11.2022 Judgment delivered on 24.11.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 1835 of 2022 Applicant :- Parvez Shahjahan And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- M J Akhtar Counsel for Opposite Party :- G.A.,Praveen Kumar Giri,Shadab Alam Hon'ble Saurabh Shyam Shamshery,J.
1. The fact of present case from perusal of record available shows that in pursuance of an F.I.R. lodged on 03.04.2020 for the offence under Sections 147, 148, 149, 308, 336 I.P.C. by complainant Kausar Shahjahan against all applicants, a charge sheet dated 13.07.2020 bearing No. 1 of 2020 was submitted against applicants under Sections 336, 323, 504, 506 I.P.C. against applicants Parvez Shahjahan, Harish Shahjahan, Abid Shahjahan and Hamza Shahjahan. So far as Washif Shahjahan was concerned, his investigation was conducted separately. However, it appears that no cognizance was taken immediately.
2. Thereafter, on the basis of an application of complainant, Superintendent of Police, Azamgarh directed for further investigation and thereafter a supplementary charge sheet was submitted bearing No. 02 of 2020 on 17.11.2021 for offence under Sections 336, 323, 504, 506, 147, 308, 452 I.P.C. against all applicants.
3. Learned trial Court took cognizance on both the charge sheets on 06.12.2021 and thereafter summons were issued on same date i.e. 06.12.2021 to all the applicants.
4. Sri V.M. Zaidi, Senior Advocate assisted by Sri Uma Shankar Tiwari, learned counsel for applicants vehemently argued that once a charge sheet was submitted before the Court concerned, the police authorities have no power to reinvestigate the case on the basis of an application submitted by complainant. He further submitted that learned trial Court took cognizance on first charge sheet, therefore, he cannot take subsequent cognizance on the second charge sheet. The first injury report of injured did not show any abnormality, however, a manipulated injury report was prepared on next day of occurrence in order to make out a case under Section 308 I.P.C.
5. Learned Senior Advocate placed reliance upon a judgment of High Court of Delhi at New Delhi in the case of Surender @ Tannu @ Tanva vs. State of NCT of Delhi, 2022 SCC OnLine Del 1783 of which relevant paragraph 41 is quoted hereinbelow :-
"41. Keeping in view the abovementioned principles and the law under the Cr.P.C., this Court finds that the Supplementary Chargesheet filed at a subsequent stage after the alleged further investigation, was not filed after having been found any fresh material or evidence, and therefore, neither was the further investigation proper and in accordance with the law nor the Supplementary Chargesheet is sustainable in the eyes of law. The material relied upon by the Investigating Officer at the time of filing of the subsequent and Supplementary Chargesheet was present at the time of filing the first Chargesheet as well and in the first Chargesheet the petitioner was put in Column 12."
6. The above submissions were opposed by Sri Deepak Kapoor, learned A.G.A. for the State and Sri Shadab Alam, learned counsel for opposite party No.2. They submitted that charge sheet was filed on 13.07.2021 against four applicants for offence under Sections 323, 504, 506, 336 I.P.C. So far as fifth applicant (Washif Shahjahan) was concerned, investigation was conducted separately but no cognizance was taken.
7. Learned counsel for opposite parties further submitted that order dated 26.06.2021 passed by the Superintendent of Police, Azamgarh specifically states for further investigation. It does not said about re-investigation. The second charge sheet was a supplementary charge sheet and since the Court has not taken cognizance on the original charge sheet, therefore, took cognizance on both charge sheets on 06.12.2021 against all the applicants for committing offence under Sections 147, 323, 504, 506, 336, 308, 452 I.P.C. and thereafter, on the same date, summons were issued. As such there was no illegality in the procedure.
8. Learned counsel for opposite parties further pointed out that statement of doctor specifically states that according to CT Scan of head, injured has suffered grievous injuries which, in the absence of proper treatment, may lead death.
9. Heard learned counsel for parties and perused the record.
10. The crux of argument of Senior Advocate for applicants is that once a charge sheet has been submitted, the police authorities have no right to reinvestigate except by an order of Court concerned as well as the medical report of injured was manipulated. Learned counsel for opposite parties have opposed the said submissions.
11. In order to consider the above submissions, I have carefully perused the charge sheet No. 01 of 2020 dated 13.07.2020. In paragraph 16, the charge sheet was filed against four applicants, Parvez Shahjahan, Harish Shahjahan, Abid Shahjahan and Hamza Shahjahan under Sections 323, 504, 506, 336 I.P.C. No charge sheet was filed against Washif Shahjahan as he was not found involved in the crime. In paragraph 16, the words used are "अब तक की तमामी तफ्तीश". On perusal of the last page of charge sheet, it appears that charge sheet was placed before the Court but there was no order of cognizance.
12. There is an order dated 07.08.2020 wherein the above referred applicants have surrendered before the Court concerned and they were granted bail.
13. Before that, there is an order dated 06.06.2021 of Superintendent of Police, Azamgarh whereby a direction was given for further investigation "अग्रिम विवेचना".
14. Learned Senior Advocate has read the lower part of noting wherein words are used "वापस कोतवाली पुनः विवेचना हेतु". However, the order has to be read from the contents which are signed by Superintendent of Police, Azamgarh and the order only reads "अग्रिम विवेचना" i.e. further investigation. Therefore, it was a further investigation and not reinvestigation and it is settled law that senior officer can direct for further investigation and for that purpose it is only to intimate the Court concerned.
15. In the present case, when the order for further investigation was passed, the Court has not taken cognizance on the first charge sheet.
16. Further, I have carefully perused another charge sheet dated 17.11.2021 bearing No. 02/2020 wherein on Serial No.7, it is titled as "अनुपूरक" i.e. supplementary. In paragraph 16, details of investigation are mentioned which specifically indicates that initially the charge sheet was submitted only against four applicants for offence under Sections 323, 504, 506, 336 I.P.C. and thereafter on the basis of order of Superintendent of Police, further investigation was conducted and on the basis of statement of witnesses, medical report as well as statement of doctors, it was found that offence under Sections 308, 454, 147 I.P.C. was also committed by four applicants as well as by fifth applicant also and in these circumstances, supplementary charge sheet was filed under Section 336, 323, 504, 506, 147, 308, 452 I.P.C.
17. Since it was a supplementary charge sheet in pursuance of directions passed by Superintendent of Police, Azamgarh for further investigation, therefore, there was no abuse of process in filing a supplementary charge sheet and learned trial Court legally took cognizance of the first charge sheet as well as supplementary charge sheet together and issued summons.
18. The above process is also in conformity with the law declared by Supreme Court in the case of Luckose Zachariah alias Zak Nedumchira Luke and Others vs. Joseph Joseph and Others, 2022 SCC OnLine SC 241 that it is necessary for the Magistrate to have due regard of both the reports, the initial report submitted under Section 173(2) as well as supplementary report which was submitted after investigation in terms of Section 173 (8) Cr.P.C. For reference, paragraph 16 of Luckose (supra) is quoted hereinbelow :-
"16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge of the Kerala High Court in Joseph (supra) which is contrary to the position set out in Vinay Tyagi. Hence, the JFCM - I Alappuzha shall reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi v. Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya v. State of Gujarat as noted above and in terms of the observations contained in the present judgment. The Magistrate shall take a considered decision expeditiously within a period of one month from the date of the present order."
19. Now the Court proceeds to consider the submissions on merit i.e. charge sheet was wrongly filed under Section 308 I.P.C. as the injury report was manipulated. Submission of learned Senior Advocate is that the occurrence took place at 4.05 PM on 02.04.2020. The first information report was lodged at about 4.07 AM on 03.04.2020. Medical examination of injured was taken at 4.15 AM on 03.04.2020 at District Hospital, Azamgarh and he was treated as OPD patient also but he was not medically examined and thereafter injured approached Life Line Hospital at about 9.45 AM on 02.04.2020 where he was medically examined and his CT scan was conducted but no significant abnormality was detected and that when the initial charge sheet was filed, the statement of Dr. Anup Singh was recorded that there was no visible injury. However, the said doctor has made a contradict statement during further investigation that by way of a letter that as per CT head, the injured suffered grievous injuries on a vital part i.e. head. He was in a semi conscious state and being serious was kept in ICU.
20. The above submissions are opposed by learned counsel for opposite parties.
21. For the purpose of considering the contention of learned Senior Advocate about the contradiction of statement of doctor who examined the injured and conducted CT scan, I have carefully perused the photocopy of NCCT Head, (Annexure 5 to the supplementary affidavit) which states that "few resolving haemorrhage contusions with surrounding edema are seen in bilateral basifrontal region largest measuring 6.0x9.0 mm". So far as bone window was concerned, it was mentioned that "no significant abnormality detected". Therefore, from the perusal NCCT Head report, the first statement of doctor appears to be incorrect or it was stated without going through NCCT Head report. Therefore, the letter given by Dr. Anoop Singh during further investigation was an opinion after the perusal of CT Scan report and as such he mentioned that "1. मरीज अब्दुल्लाह सिर के गंभीर चोट के कारण दिनांक 03.04.2021 को रात्रि 01:47 पर लाइफ लाइन हास्पिटल एण्ड रिसर्च सेन्टर में मेरे द्वारा भर्ती किया गया। भर्ती के समय वह अर्थ मूर्चित (E2V2M5) में था जो कि हमारे डिस्चार्ज कार्ड पर अंकित हैं। 2. मरीज का विस्तृत मेडिकोलीगल परीक्षण जिला चिकित्सालय आजमगढ़ में हो चुका था तत्पश्चात वह सिर की चोट के इलाज हेतु लाइफ लाइन हास्पिटल एण्ड रिसर्च सेन्टर में भर्ती हुआ था। 3. मरीज के CT Head के अनुसार गम्भीर चोट थी और यह सत्य है कि वह उचित उपचार के अभाव में पातक को सकती थी। 4. जी हां सिर पर आदी चौट Vital Part की चोट कही जाती है। 5. हमने ऊपर उल्लेख किया है कि अब्दुल्लाह (E2V2M5) अर्ध मूर्च्छित अवस्था में था जो कि गंभीर स्थिति थी, इसलिए आई०सी०यू० में रखा गया था।"
22. In view of above discussion and on bare perusal of CT scan report as well as above referred letter of the doctor, it cannot be said that the injuries were not serious rather it was on the vital part and there was haemorrhage contusions with surrounding edema. Therefore, at this stage, the Court cannot come to a conclusion that the medical report does not reflect that no case is made out under Section 308 I.P.C. At this stage, it is apposite to mention few paragraphs of the judgment of Supreme Court in the case of State of Maharashtra and Another vs. Dr. Maroti, 2022 SCC OnLine SC 1503 which are relevant for disposal of present case -:
"19. In the decision in M.L. Bhatt v. M.K. Pandita, JT (2002) 3 SC 89, this court held that while considering the question of quashing of FIR the High Court would not be entitled to appreciate by way of sifting the materials collected in course of investigation including the statements recorded under Section 161, Cr.P.C. In the decision in Rajeev Kourav v. Baisahab, (2020) 3 SCC 317, a two Judge Bench of this Court dealt with question as to the matters that could be considered by the High Court in quashment proceedings under Section 482 Cr.P.C. It was held therein that statements of witnesses recorded under Section 161 Cr.P.C. being wholly inadmissible in evidence could not be taken into consideration by the Court while adjudicating a petition filed under Section 482 Cr.P.C. In that case, this Court took note of the fact that the High Court was aware that one of the witnesses mentioned that the deceased-victim had informed him about the harassment by the accused, which she was not able to bear and hence wanted to commit suicide. Finding that the conclusion of the High Court to quash the criminal proceedings in that case was on the basis of its assessment of the statements recorded under Section 161 Cr.P.C., it was held that statements thereunder, being wholly inadmissible in evidence could not have been taken into consideration by the Court while adjudicating a petition filed under Section 482 Cr.P.C. It was also held that the High Court committed an error in quashing the proceedings by assessing the statements recorded under Section 161 Cr.P.C.
20. There can be no dispute with respect to the position that statements recorded under Section 161 Cr.P.C. are inadmissible in evidence and its use is limited for the purposes as provided under Sections 145 and 157 of the Indian Evidence Act, 1872. As a matter of fact, statement recorded under Section 164, Cr.P.C. can also be used only for such purposes."
23. In view of above discussion, I come to conclusion that -:
(1) In pursuance of F.I.R. referred above, the investigation was conducted and a charge sheet was filed on 03.04.2020 under Section 173 (2) Cr.P.C. for offence under Sections 323, 504, 506 and 336 I.P.C. against four applicants except applicant No.2 but the learned trial Court has not taken cognizance on it.
(2) The Superintendent of Police, Azamgarh on the basis of an application filed by complainant has directed for further investigation and not re-investigation, therefore, there was no illegality in the order of further investigation.
(3) After further investigation, on the basis of evidence of doctor and report of CT Scan, supplementary charge sheet was filed on 13.07.2020 against all the applicants for committing offence under Sections 336, 323, 504, 506, 147, 308, 452 I.P.C., therefore, there was no abuse of process in the submission of supplementary charge sheet.
(4) The learned trial Court rightly considered both the charge sheets filed under Section 173 (2) Cr.P.C. as well as supplementary charge sheet filed under Section 173 (8) and after considering the evidence on record, took cognizance and summoned the applicants.
(5) The dispute, if any in regard to contrary statements of doctor cannot be considered to be a ground to quash the criminal proceedings ignoring the medical report of CT Scan of head of injured wherein injury was found and an opinion given by doctor that it was a grievous injury. Therefore, there is no illegality in taking cognizance of offence under Sections 336, 323, 504, 506, 147, 308, 452 I.P.C. by the learned trial Court.
24. In view of above, I do not find any illegality or irregularity or abuse of process of law in the investigation and submission of charge sheet under Section 173 (2) Cr.P.C. and thereafter supplementary charge sheet as well as order of cognizance on both charge sheets and summoning order whereby applicants are summoned.
25. Hence, this application stands rejected.
Order Date :- November 24, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.]