Allahabad High Court
Deepak Bhadana vs State Of U.P. And Another on 19 March, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- APPLICATION U/S 482 No. - 6827 of 2021 Applicant :- Deepak Bhadana Opposite Party :- State of U.P. and Another Counsel for Applicant :- Saumitra Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Vinay Saran, learned Sr. Advocate assisted by Sri Saumitra Dwivedi, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
The present application has been filed with a prayer to quash the impugned charge sheet no. 02 of 2020/79-A of 2020, dated 19.10.2020 as well as cognizance order as well as process issued under Section 83 Cr.P.C. on 12.10.2020 passed by learned Chief Judicial Magistrate, Hapur, arising out of case crime no. 466 of 2019, under Section 147, 148, 149, 302, 307, 120-B and 34 IPC, P.S. Dhaulana, District Hapur.
As per F.I.R. lodged by the opposite party no. 2 Sonu, on 24.11.2019, marriage of two sons of his cousin brother was to be performed with Arti and Jyoti, daughters of Vijay and for this Barat was being taken to Udairampur Nagla Thana Dhaulana, District Hapur. After the performance of the marriage at about 6:00 PM, the Bidai/milai ceremony was being performed and at that very time, informant's cousin brother Sudhir was performing Nyochhawar, at that time, Sushil, Manish and many other persons were also present at the place. All of a sudden Pawan (co-accused) came there, who had previous enmity relating to plot as case was also going on relating to it. Pawan and Lakhan were detained in District Jail, Faridabad and were released on parole for participation in the marriage in his family. All these had met together and hatched a conspiracy to eliminate the Sudhir. These facts, the informant and his family members had heard and all the applicant named above along with some other persons in pursuance of that conspiracy, came with weapons and started making indiscriminate firing upon Sudhir by which he became seriously injured. He was taken to hospital where doctor proclaimed him dead. In this occurrence, various persons of both the sides, who had attended the function, got injured. In post-mortem report, one person had died and four persons had received injury namely Sushil, Vijay, Rinkoo and Ratan Singh.
Submission made by the learned counsel for the applicant is that these injured have not named the applicant as the person who had made fire upon the deceased. He has further argued that applicant is a practising Advocate who is practising in Delhi and has been falsely implicated in the present case. He has drawn attention to the statement of the informant Sonu, witnesses Prem Singh, Raj Kumar, and Hem Singh, who all have given identical statement and have assigned the role of making fire upon the deceased to the accused-applicant, this was the first statement of the informant but subsequently in the second statement which is annexed at page 72 of the affidavit, applicant has been assigned only role of giving cover to the main assailants and not of opening fire upon the deceased, while third statement of the informant is in supplementary affidavit at page 8 and 9 in which he has stated that informant was practising Advocate at Delhi and he had been implicated only because he would have been of great help to the other accused and had been doing pairvi on their behalf. In fact this witness has assigned role of hatching conspiracy and not beyond that. He has further stated that applicant was not present on the scene of occurrence when the incident happened. C.D.R. details have also been given to establish that accused was not present on the scene of occurrence. Having pointed out all this, it is argued that applicant has been falsely implicated. Additionally he has argued that there is CCTV footage also indicating that there was no presence of the accused-applicant on the scene of occurrence, therefore, it is prayed that proceeding against the accused should be quashed, as he has been falsely implicated, as investigating officer had not conducted the investigation in appropriate manner.
He has placed reliance upon Babubhai Vs. State of Gujarat, (2011) 1 SCC (Cri.) 336 in which attention is drawn to the paragraph nos. 29 and 30 which are being quoted herein below:-
"29. In Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1, one of us (Hon'ble P. Sathasivam, J.) has elaborately dealt with the requirement of fair investigation observing as under:-
"...... The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India....
It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society....
The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation....
The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation.....".
30. This Court in K. Chandrasekhar Vs. State of Kerala & Ors. (1998) 5 SCC 223; Ramachandran Vs. R. Udhayakumar & Ors. (2008) 5 SCC 413; and Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel & Ors. Vs. State of Gujarat (2009) 6 SCC 332; and Kishan Lal Vs. Dharmendra Bafna (2009) 7 SCC 685 has emphasised that where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173 (8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a re-investigation. "Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."
On the basis of said position of law, it is argued that since there are significant irregularities committed by the Investigating Officer therefore this Court may direct the Investigating Officer to further investigate this case under Section 173(8) Cr.P.C.
Learned A.G.A. has vehemently opposed the prayer of quashing and has stated that after investigation in this case, charge sheet had been submitted against the accused-applicant after recording as many as 37 witnesses and the truthfulness of these witnesses cannot be looked into in proceedings under Section 482 Cr.P.C. The number of witnesses, who have been examined by the investigating officer, indicates that this case has not been taken lightly and thorough investigation appears to have been made.
Since contents of the F.I.R. are very much clear and by F.I.R role of making fire upon the deceased is assigned to the accused and initial statement of the informant does support that also and subsequently statement may exonerate him but in totality the trial court only can see as to which version of the informant is found to be correct. At this stage, it would not be appropriate to express any view with respect to the correctness of the statement as the same is domain of the trial court.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings is refused. Accordingly, the present application is dismissed.
Order Date :- 19.3.2021 A.P. Pandey