Allahabad High Court
Sajid vs State Of U.P. And Another on 25 April, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:72915 Court No. - 87 Case :- APPLICATION U/S 482 No. - 30409 of 2022 Applicant :- Sajid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Saroj,Mahendra Ram Maurya,Nagendra Bahadur Singh,Punit Kesarwani,Ranjeet Asthana,Saleem Ahmad,Sanjai Kumar,Satyendra Narayan Singh,Vikas Singh Counsel for Opposite Party :- Arvind Kumar Mishra,G.A. Hon'ble Samit Gopal,J.
1. Heard Shri Satyendra Narayan Singh, learned counsel for the applicant, Shri Arvind Kumar Mishra, learned counsel for the opposite party no. 2 and Shri Ram Prakash Shukla, learned counsel for the State and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant Sajid with the following prayers:-
"i) to stay the further proceeding of S.T. No. 182 of 2021 arising out of case crime no. 238 of 2021 (State Vs. Sajid), U/S 363,376 I.P.C. & Under Section 3/4 of POCSO Act registered in P.S.-Baghpat District-Baghpat pending in the court of learned Apper District Session Judge Court no. 5 /Special Judge Gangster Act Civil Court Baghpat during the pendency of this application;
ii) to set-aside the order dated 01.09.2022 passed by learned Apper District & Session Judge Court no. 5/Special Judge Gangster Act Civil Court Baghpat in S.T. No. 182 of 2021 arising out of case crime no. 238 of 2021 (State Vs. Sajid), U/S 363,376 I.P.C. & Under Section 3/4 of POCSO.Act registered in P.S.-Baghpat District-Baghpat in the interest of justice, which contain as Annexure no.15 to the application.
iii) To set aside the charge sheet dated 13.12.2021 & cognizance dated 15.12.2021 along with the entire proceeding arising out from the S.T. No. 182 of 2021 arising out of case crime no. 238 of 2021 (State Vs. Sajid), U/S 363,376 I.P.C. & Under Section 3/4 of POCSO.Act registered in P.S.-Baghpat District-Baghpat pending in the court of learned Apper District Session Judge Court no. 5 /Special Judge Gangster Act Civil Court Baghpat in the interest of justice.
iv) To direct the learned Apper District & Session Judge Court no. 5/ Special Judge Gangster Act Civil Court Baghpat to issue a parawana to the concern jail for release of the applicant during pendency of this application And/or to pass such other further order which this Hon'ble Court may deem fit and proper facts and circumstances of case."
3. The facts of the case are that a First Information Report was lodged on 08.04.2021 by Ass Mohommad, the opposite party no. 2 as Case Crime No. 238 of 2021 under Section 363 IPC against unknown person. The matter came up for investigation during which, the daughter of the first informant was recovered, who herself reached the police station and her statements under Section 161 and 164 Cr.P.C. were recorded. Subsequently, a charge-sheet dated 13.12.2021 was submitted against the applicant under Sections 363 and 376 IPC and Sections 3/4 of the POCSO Act. The facts of the case are not being dilated herein since the same would at the present moment and in the dispute as raised in the petition may not be having significance.
4. On the said charge-sheet, the trial court concerned took cognizance vide its order dated 15.12.2021. An application dated 16.02.2022 numbered as paper no. 17Ba was moved by the accused-applicant before the trial court with the prayer that there are many issues left unattended by the Investigating Officer and as such the matter be sent for further investigation. Subsequently, an application dated 29.04.2022 was filed by the Investigating Officer numbered as paper no. 16Ba before the trial court intimating the Court that the Superintendent of Police, Baghpat vide his order dated 23.03.2022 has ordered further investigation in the matter. The application also stated that the accused has been arrested on 18.10.2021 and a charge-sheet dated 13.12.2021 has been filed against him which is pending consideration before the court concerned. It was prayed that appropriate orders be passed for further investigation. The trial court vide its order dated 13.07.2022 allowed the application 16Ba of the Investigating Officer and directed further investigation in the same. Insofar as the application of the accused is concerned, since an order of further investigation was passed, the same was thus disposed of.
5. The matter was investigated further and a supplementary report under Section 173 Cr.P.C. dated 16.08.2022 in the nature of a final report was forwarded by the Investigating Officer stating that the implication of the accused was not found in the matter and as such he forwards a report under Section 169 Cr.P.C. in his favour. The said report was numbered as Final Report No. 05 of 2022 and was directed to be registered vide order dated 30.08.2022 passed by the trial court.
6. An application dated 30.08.2022 was moved by the applicant before the trial court that since in the further investigation, the Investigating Officer after concluding the investigation has submitted a final report in his favour on the basis of which he was found to be not involved therein thus, he be directed to be released from jail forthwith since he is in jail since 17.10.2021. The said application stood rejected vide order dated 01.09.2022 passed by the Additional Sessions Judge Court No. V/ Special Judge (Gangster Act), Baghpat. The said order is thus impugned herein.
7. Pleadings in the matter have been exchanged.
8. Learned counsel for the applicant argued that since in the further investigation, the Investigating Officer has filed a report under Section 169 Cr.P.C. in favour of the applicant, the trial court was bound to consider the same in light of the judgments of the Apex Court in the case of Vinay Tyagi vs. Irshad Ali @ Deepak & Ors., 2013 (5) SCC 762 and Luckose Zachariah @ Zak Nedumchira Luke and Ors. vs. Joseph Joseph and Ors., 2022 0 Supreme (SC) 510. It has been stated that the trial court did not consider the said final report while deciding the application for release of the applicant which was filed on the ground that a report under Section 169 Cr.P.C. has been filed in his favour. It is submitted that the trial court merely observed that it has taken cognizance upon the charge-sheet filed earlier and thus, proceeded to reject the application for release of the applicant, but did not further consider the additional and further evidence collected during investigation and also the report under Section 169 Cr.P.C. It is submitted that the applicant is still in jail and a bail application has been filed before this Court which is connected with the present matter and is also pending. It is submitted that looking to the submissions as advanced, the order impugned dated 01.09.2022 be set-aside, the trial court be directed to release the applicant forthwith and the prayers in the present application under 482 Cr.P.C. be allowed.
9. Per contra learned counsel for the opposite party no. 2 and learned counsel for the State opposed the prayer and arguments of learned counsel for the applicant. It is submitted that the implication of the applicant has surfaced in the matter during investigation after which a charge-sheet was submitted and the trial court has taken cognizance on it. It is submitted that the matter was investigated further and although a final report has been submitted in favour of the accused-applicant, the statements of the victim recorded during investigation would in no manner exonerate the applicant from the present matter as charge-sheet of the same would go to show that offence is made out and he is involved in the matter. It is submitted that the prayer be thus rejected.
10. After having heard learned counsels for the parties and perusing the records, the facts which emerge out in the present case are that after lodging of a First Information Report against unknown person, the investigation was taken up during which the complicity of the applicant surfaced. A report under Section 173 (2) Cr.P.C. was filed against the applicant for offences under Sections 363, 376 IPC and 3/4 of the POCSO Act. The trial court concerned took cognizance upon it on 15.12.2021. The Superintendent of Police concerned passed an order for further investigation in the matter. The accused also moved an application for the same. The application of the Investigating Officer seeking permission to further investigate the matter from the trial court was allowed and the trial court permitted further investigation in the matter. The matter was investigated further and a report under Section 169 Cr.P.C. dated 16.08.2022 was filed by the Investigating Officer opining that the applicant is not involved in the present case and detaining him further in jail would not be in the interest of justice. The applicant was arrested on 17.10.2021 and is in jail since then. An application by the accused-applicant that he be released from jail in view of the report under Section 169 Cr.P.C. was rejected by the trial court vide its order dated 01.09.2020. The present petition is thus being filed with the aforesaid prayers. The law with regards to filing of a subsequent report after further investigation especially in the nature of a final report when a charge-sheet has been submitted earlier, at which the court concerned has taken cognizance, is trite. The Apex Court in the casese ofVinay Tyagi (supra) andLuckose Zachariah @ Zak Nedumchira Luke (supra) has held that in such a situation both their reports have to be seen by the trial court concerned and considered at the appropriate stage. Insofar as the taking of cognizance upon the charge-sheet by the trial court is concerned, the same cannot be wiped off after filing of a final report. The trial court also cannot even review its order and undo the same. The same can only be set aside by a superior court if in a given situation it considers it fit and proper.
11. In sum and substance, the situation is that cognizance once taken, cannot be withdrawn or set aside by the same court as has been held by the Apex Court in the case of Union of India Vs. Prakash P. Hinduja and Anr., AIR 2003 SC 2612. The final report once filed and after reaching the court, is to be considered by the trial court at the appropriate stage. Once the accused has been arrested and has been remanded to custody, merely filing of a final report at a subsequent stage after further investigation, cannot be released on filing of such report. His custody is a legal custody. The law has to take its own course for release of the accused who is under custody. The cognizance on the charge-sheet has been taken which stands till date. The appreciation and consideration of the opinion of the Investigating Officer while forwarding the report under Section 169 Cr.P.C. and the material in support thereof has to be judged by the trial court at an appropriate stage, simultaneously, with all the evidence collected on the basis of which charge-sheet was submitted and cognizance was taken.
12. In view of the discussions as above, no ground exists to interfere in the present application, the same is rejected.
13. Interim order, if any, stands vacated.
Order Date :- 25.4.2024 Vipasha (Samit Gopal, J.)