Allahabad High Court
Renu Pal Alias Km. Renu Pal vs State Of U.P. Thru. Addl. Chief Secy. ... on 1 March, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 09.02.2023 Delivered on: 01.03.2023 Court No. - 14 Case :- CRIMINAL REVISION No. - 1301 of 2022 Revisionist :- Renu Pal Alias Km. Renu Pal Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Civil Sectt. Lko. And 3 Others Counsel for Revisionist :- Ajmal Khan,Prem Prakash Singh Counsel for Opposite Party :- G.A.,Anil Kumar Tiwari Hon'ble Suresh Kumar Gupta,J.
1. I have heard Mr. Gyanendra Singh, Advocate holding brief of Mr. Prem Prakash Singh, learned counsel for the revisionist, Mr. S.P. Tiwari, learned AGA for the State and perused the material available on record.
2. This revision has been filed U/s 397/401 CrPC against the impugned order dated 2.11.2022 passed by the learned Special Judge, POCSO Act, Ambedkar Nagar in Criminal Misc. Case No. 230 of 2022, POCSO Case No. 193/2022 arising out of Case Crime No. 544 of 2021, U/s 363,366,376,313,328,323,504 IPC and 3/4 of Protection of Children from Sexual Offence Act, 2012, whereby the application of the revisionist filed U/s 319 CrPC has been rejected.
3. Learned counsel for the revisionist submitted that the revisionist filed an application U/s 156(3) CrPC before the learned Special Judge, POCSO Act, Ambedkar Nagar on which the learned court directed the SHO, Akbarpur to register the FIR and investigate the matter. On said direction of the court, on 5.12.2021 the FIR was registered as case crime No. 544/2021 under Sections 363,366,376,313,328,323,504 IPC and 3/4 of Protection of Children from Sexual Offence Act, 2012 at PS Akbarpur, Ambedkar Nagar against opposite party nos. 2 to 4. It is further submitted that the investigating officer conducted the investigation in arbitrary manner and exonerated the opposite party nos. 2 to 4 and filed charge chargesheet against only one accused Amit Pal on 24.4.2022, a copy of which has been annexed as Annexure-2 to this revision. The above noted chargesheet was filed before the learned trial court who took cognizance on 30.4.2022.
4. Learned counsel for the revisionist further submitted that the accused Amit Pal filed the application for declaring his juvenility conflict with law, which was allowed and the FIR was sent to the Juvenile Justice Board on 4.5.2022. It is further submitted that on 24.5.2022, the Juvenile Justice Board declared the accused Amit Pal juvenile and during pendency of proceedings, the juvenile moved the confession application and the Juvenile Justice Board considered the same and convicted the juvenile Amit Pal for probation and closed the trial on 24.5.2022 imposing fine of Rs. 10,000/-. Thereafter, the revisionist filed an application U/s 319 CrPC on 29.7.2022 for summoning the opposite party nos. 2 to 4 to face trial, but the same was duly rejected by the Special Judge, POCSO Act, Ambedkar Nagar by order dated 2.11.2022. Hence, this revision has been filed.
5. During course of argument, leaned counsel for the revisionist filed written submissions and raised further argument stating that in this matter, the police submitted a report U/s 173(2)(i) CrPC without giving any information as provided in U/s 173(2)(ii) CrPC to the learned Special Judge, POCSO Act in Police Form No. 339 against one named accused Amit Pal who was summoned and being juvenile, his case was forwarded to the Juvenile Justice Board and on the basis of confession, the child Amit Pal was released on probation. In respect of other three named accused, the application U/s 319 CrPC was rejected.
6. The main argument of the learned counsel for the revisionist is that in this matter, the implication of the opposite party nos. 2 to 4 was not found correct by the investigating officer, therefore, no chargesheet has been filed against the opposite party nos. 2 to 4. However, in respect of exonerated accused-respondent nos. 2 to 4, the police report U/s 173(2)(i) CrPC was not found in prescribed police form No. 440 as per para 122 of U.P. Police Regulation. Thus, the investigating officer failed to follow the mandate of sections 173(2)(i) and (ii) of CrPC as well as Para 122 of the U.P. Police Regulation. It is further submitted that if the investigating officer found that no offence is made out against the opposite party nos. 2 to 4, then it was incumbent duty of the investigating officer to file the police report in proper format. Thus, the complainant had two options available i.e. (i) to submit a protest petition, which would have been decided in accordance with law; (ii) second option was available to the learned Special Judge to forward the case of the chargesheeted accused to the Juvenile Justice Board and retain a copy of the report of the rest of the three named accused with him and would have issued notice to the complainant and only thereafter would have been decided in accordance with law. But this legal recourse has not been adopted by the court concerned.
7. Learned counsel for the revisionist submitted that the revisionist preferred an application under section 319 of the Code which could have been treated as a protest and the learned Special Judge ought to have proceeded in accordance with law as incorrect label of the application and mentioning wrong provision does not denude the court of its jurisdiction. The Apex Court held in Vijya Bank vs. Shyamal Kumar Lodh, (2010) 7 SCC 635, as under:
"Incorrect label of the application and mentioning wrong provision neither confers jurisdiction nor denudes the Court of its jurisdiction. Relief sought for, if falls within the jurisdiction of the Court, it cannot be thrown out on the ground of its erroneous label or wrong mentioning of provision."
8. It is further submitted that in view of the aforesaid settled law it was the statutory duty of the learned Special Judge to treat the aforesaid application of the revisionist as a protest application. Thus, it was desirable that the trial court shall proceed in accordance with law into the matter but rejecting the aforesaid application was erroneous and in violation of law.
9. Learned counsel for the revisionist has further submitted that in 161 & 164 CrPC statement of the revisionist itself reveals that the specific role has been assigned to opposite party nos. 2 to 4. So the learned counsel submitted that the trial court committed material irregularity and illegality and he may treat the application as a protest petition and summon the opposite party nos. 2 to 4 to face trial.
10. Learned AGA vehemently opposed and submitted that the application U/s 319 CrPC moved by the revisionist before the learned trial court was lied at the stage of any inquiry or trial and if it appears from the evidence led by the witnesses that any person not being an accused has committed the offence for which such person could be tied together with the accused, The court may proceed against such person for the offence which appears to have committed. In this mater, the application U/s 319 CrPC filed was not during the proceedings of trial. Hence, the learned trial court has rightly rejected the same. But the learned AGA accepted that legal recourse was available to the complainant to file protest petition.
11. I have heard learned counsel for both the parties and perused the material available on record.
12. I also agree that the application U/s 319 CrPC could not be entertained as there was neither any stage of inquiry or trial was pending before the court concerned, but this fact is admitted that the police report U/s 173(2)(i) CrPC submitted by the investigating officer is not in accordance with provision of Sections 173(2)(ii) CrPC as well as para 122 of the U.P. Police Regulation.
13. The Para 122 of the U.P. Police Regulations reads as under:
"122. (i) An investigation should be completed as soon as possible and when complete the investigating officer must comply with the provisions of Section 161-171 and 173 of the Code of Criminal Procedure, 1973 (2 of 1974). The report prescribed by Section 173 must under that section be submitted by the officer incharge of the police station under intimation to the Superintendent of Police and should be in the form of chargesheet (Police Form No. 339), if the case is sent for trial and in the form of final report (Police Form No. 340), if the case is not sent for trial. The charge-sheet with the final diary in the cases shall be submitted to the Court through the Circle Officer and the Public Prosecutor and should reach the Court within four weeks of the date of lodging of the first information report in summons and warrants cases and eight weeks in Sessions cases. None of the Circle Officer and the Public Prosecutor should normally retain the charge-sheet for more than a week and the latter should submit it to the Court concerned within the time-limit prescribed. The prescribed time-limit should not be allowed to exceed except for very special reasons. (ii) As soon as possible but in any case not later than a month of the expiry of each quarter, the Superintendent of Police shall submit to the District Magistrate, in the prescribed form and in duplicate, a quarterly list of cases in which charge-sheet could not be submitted within the prescribed time-limit of 4/8 weeks. The District Magistrate will forward it to the Range Deputy Inspector General of Police endorsing the other copy with his comments to the Commissioner of the Division. The Range Deputy Inspector General of Police will thereupon compile in the prescribed form, a statement of delayed cases and submit it to the Inspector General of Police who will forward the same to Government in Home Department (Police A) with his comments. (iii) The final report must in all cases be submitted through the Superintendent of Police. (iv) The information as the result of investigation must, as required by Section 173 (i) (b), Criminal Procedure Code, 1973 (2 of 1974) be sent by the officer in charge of the police station to the complainant if any in Police Form No. 47, at the time he submits the charge-sheet or the final report, as the case may be."
14. The provision of Section 173(2) CrPC reads as under:
"(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."
15. Generally it is seen that the charge-sheet is filed against some accused in Police Form No. 339. But if the indulgence of some of the accused is not found after investigation, then generally police report is not filed by the investigating officer as per legal mandate as provided in Section 173(2) CrPC and as per provision mentioned in Para 122 of the U.P. Police Regulations.
16. From a joint reading of section 173 (2) CrPC as well as Para 122 of the U.P. Police Regulations, it shows that the investigating officer is duty bound to give information about the result of the investigation to the complainant who has lodged the FIR whether he submitted the charge-sheet or final report.
17. Thus, after discussion I am of the view that if the protest petition against the report U/s 173(2) CrPC is filed by the revisionist, then the same shall be heard and decided in accordance with law.
18. Accordingly, the revision is disposed of on the above terms.
Order Date :- 01.03.2023 Shravan