Allahabad High Court
Yashvir Singh And Others vs State Of U.P. And Another on 2 April, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:56426 Court No. - 87 Case :- APPLICATION U/S 482 No. - 8590 of 2024 Applicant :- Yashvir Singh And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Vakalatnama filed by Sri Shyam Surat Shukla, Advocate on behalf of Omveer Singh son of late Dhara Singh the brother of the deceased Narayan Singh is taken on record.
3. Heard Sri Sunil Kumar, learned counsel for the applicants, Sri Shyam Surat Shukla, learned counsel for the brother of the deceased and Sri Ajay Singh, learned AGA-I for the State and perused the records.
4. The present application under Section 482 Cr.P.C. has been filed by the applicants Yashvir Singh, Subhash, Subhash, Veersen, Sanjay, Chhechu and Jasveer with the following prayers:
"It is therefore most respectfully prayed that this Hon'ble court may kindly be please to set aside/quash the impugned order dated 29.02.2024 passed by Chief Judicial Magistrate Baghpat in Criminal Case no. 2246 of 2022 (Arising out of Case Crime no. 161 of 199) (State Versus Dharampal and others) Under section 147,148,149,302 I.P.C. Police Station - Doghat, District Baghpat as well as please to quash the entire proceeding of Criminal Case no. 2246 of 2022 (Arising out of Case Crime no. 161 of 199) (State Versus Dharampal and others) Under section 147,148,149,302 I.P.C. Police Station -Doghat, District Baghpat pending in the court of Chief Judicial Magistrate Baghpat. So the Justice be done.
It is also prayed that this Hon'ble Court may further be pleased to stay the execution of the coercive process i.e. Non Bailable warrant issued by the court below against the applicants as well as the further proceedings of the Criminal Case no. 2246 of 2022 (Arising out of case crime no. 161 of 199) (State Versus Dharampal and others) Under section 147,148,149,302 I.P.C. Police Station Doghat, District Baghpat pending in the court of Chief Judicial Magistrate Baghpat may also be kept in abeyance for during the pendency and till the disposal of the instant petition of the applicant before this Hon'ble Court. So the justice be done.
And/or pass such order or further orders as this Hon'ble court deem fit and proper under the facts of the case. So the justice may be done."
5. The facts of the case are as follows:
(i) An FIR was lodged on 28.06.1999 by Veersen against unknown persons for an occurrence which took place on 25.06.1999 as Case Crime No. 161 of 1999 under Section 302 IPC, P.S. Doghat, District Baghpat.
(ii) In the matter Ranveer Singh Jaat died.
(iii) During investigation, the name of the applicants surfaced and they were made as accused.
(iv) Charge sheet in the matter was submitted after conclusion of investigation being charge sheet No. 217 of 1999 dated 07.11.1999 against six applicants and one Dharam Pal (non applicant) as absconders under Sections 147, 148, 149, 302 IPC.
(v) The trial court took cognizance upon the said charge sheet vide order dated 08.12.1999 and summoned the accused persons.
(vi) Another charge sheet dated 02.12.1999 was submitted under Sections 147, 148, 149, 302 IPC against accused Subhash son of Raj Pal (applicant no.3) as absconder on which also the trial court took cognizance vide order dated 08.12.1999.
(vii) The investigation of the matter was transferred to the CBCID vide letter dated 08.12.1999 of the State of U.P.
(viii) An information about the transfer of investigation was given to the concerned court vide application dated 24.01.2000 of the Investigating Officer/Inspector CBCID Uttar Pradesh, Meerut.
(ix) An application under Section 482 Cr.P.C. being Crl. Misc. Application U/s 482 No. 6647 of 1999 (Dharampal and others Vs. State of U.P.) was filed before this Court with the prayer for stay of proceedings on the basis of charge sheet in the case during investigation by the CBCID which vide order dated 25.02.2000 was allowed and it was ordered that the proceedings on the basis of charge sheet shall remain stayed till investigation is completed by CBCID.
(x) The CBCID came to a conclusion that the implication of the applicants is false and sent a report to the State Government.
(xi) The said final report of the CBCID was accepted by the State Government vide its letter dated 24.03.2001.
(xii) The accused moved applications dated 18.12.2008 and 06.06.2023 before the court concerned with the prayer that the final report of the CBCID be summoned and an order be passed for conclusion of investigation.
(xiii) The CJM, Baghpat vide order dated 31.07.2023 stated that the said case is pending at the stage of committal, charge sheet against the accused persons have been filed an absconder, the accused did not appear before the Court despite summons and hence issued non bailable warrants against the accused persons.
(xiv) The order dated 31.07.2023 was challenged by the accused persons before this Court in Crl. Misc. Application U/s 482 No. 30420 of 2023 (Dharam Pal Singh and 7 others Vs. State of U.P. and another) in which vide order dated 06.09.2023 it was directed that no coercive action shall be taken against the applicants.
(xv) The said 482 petition was disposed of vide order dated 31.10.2023 whereby the order dated 31.07.2023 passed by the Chief Judicial Magistrate, Baghpat was quashed and it was directed that the CBCID may submit a report in proper format within a week and after submission of the police report the Chief Judicial Magistrate shall proceed in accordance with law and pass a fresh order after hearing the parties. It was further ordered that for a period of one month or till passing a fresh order which is earlier no coercive action shall be taken against the applicants. The said order reads as under:
"1. Heard Sri Sunil Kumar, along with Sri Ajay Kumar Jagdish, learned counsel for the applicants, Sri Shyam Surat Shukla, learned counsel appearing on behalf of the first informant and Sri A.K. Sand, learned Government Advocate assisted by Sri Rajeev Kumar Singh, learned AGA for the State.
2. In pursuance of the order dated 13.10.2023, Sri K. Satyanarayana, Additional Director General, CBCID has filed affidavit mentioning therein that in pursuance of the order dated 08.12.1999 of the State Government, investigation was taken over by the CBCID on 19.01.2000 and, thereafter, after completion of the investigation, CBCID has submitted original case diary before the learned Chief Judicial Magistrate, Baghpat on 17.01.2019. This fact was neither disputed by the learned counsel for the applicants nor by the learned Chief Judicial Magistrate, Baghpat (who is also present personally through video conferencing). However, a question was raised by learned counsel for the applicants that though the case diary in original has been submitted but police report in the format prescribed u/s 173(2) Cr.P.C. has not been filed till date which is mandatory in nature.
3. From perusal of record, it appears that by the impugned order dated 31.07.2023, learned Chief Judicial Magistrate, Baghpat has rejected the application of the applicants dated 06.06.2023 by which request was made that before proceeding further, learned Magistrate should call report from CBCID regarding completion of investigation and status of withdrawing case as per recommendation of CBCID. By the impugned order, learned Chief Judicial Magistrate, Baghpat after rejecting the application of the applicants on the ground that till date no report/format has been filed regarding withdrawal of prosecution on the basis of report of CBCID also issued non-bailable warrant against the applicants.
4. On the other hand, Sri A.K. Sand, learned Government Advocate has submitted that CBCID after completion of investigation in pursuance of the order of the State Government submitted his report u/s 173(8) Cr.P.C., though, format if required by Section 173(2) Cr.P.C. has not been submitted because in the case of further investigation by the CBCID, no such format has been prescribed. It is further submitted by learned Government Advocate that if court directs then the CBCID will prepare the format as required u/s 173(2) Cr.P.C., and same will be submitted within a week before the learned Chief Judicial Magistrate, Baghpat. It is undisputed fact that CBCID has completed investigation and submitted its report on 17.01.2019 before the learned Chief Judicial Magistrate, Baghpat but the procedure prescribed u/s 173(2) Cr.P.C. regarding submission of final police report has not been followed.
5. Learned Magistrate while passing the impugned order did not consider the above aspect, therefore, the order dated 31.07.2023 passed by the learned Chief Judicial Magistrate, Baghpat, is hereby quashed.
6. In view of the above circumstances, this Court directs the CBCID to submit the police report in proper format as prescribed u/s 173(2)(i) Cr.P.C., within a period of one week, from today. On submission of the aforesaid final police report u/s 173(2)(i) Cr.P.C. by the CBCID, learned Chief Judicial Magistrate, Baghpat will proceed further in accordance with law and pass fresh order after hearing the parties, within a period of two weeks from the date of receiving the final police report of CBCID as per format prescribed u/s 173(2) Cr.P.C.
7. It is further provided that for a period of one month or till passing of the fresh order, whichever is earlier, no coercive action shall be taken against the applicants.
8. With the aforesaid direction, present application is disposed of.
9. Presence of Sri K. Satyanarayana, Additional Director General, CBCID, and learned Chief Judicial Magistrate, Baghpat, is exempted.
10. This court also appreciates valuable assistance by the learned Chief Judicial Magistrate, Baghpat as well as Sri A.K. Sand, learned Government Advocate."
(xvi) A final report No. 2 of 2023 dated 02.11.2023 was filed by the CBCID in Court.
(xvii) An application dated 09.02.2024 was filed by the accused persons stating therein that although charge sheet has been submitted on which cognizance has been taken but on further investigation, final report has been submitted by the CBCID, the same be considered and be accepted.
(xviii) The CJM Baghpat vide order dated 29.02.2024 rejected the said application dated 09.02.2024 of the accused and again issued non bailable warrants against them.
(xix) The applicants are thus before this Court with the prayers as aforesaid.
6. Learned counsel for the applicants submitted as follows:
(i) The order impugned dated 29.02.2024 is an illegal order inasmuch as the same is reproduction of the order dated 31.07.2023 which was quashed by this Court.
(ii) The accused persons are not absconding inasmuch as they have been demanding filing report after completion of investigation by the CBCID before the Court which was not done.
(iii) The State Government had accepted the final report as informed to it by the CBCID and the matter had been proceeded for withdrawal of the prosecution by the State Government.
(iv) A letter dated 24.03.2021 of the State Government specifically states that the final progress report has been accepted by the State Government and it further directed that appropriate further action in the matter which thus would have enabled the Court concerned to close the issue by accepting the final report.
(v) The order of this Court in 482 petition has not been complied with in its true letter and spirit inasmuch as the final report submitted by the CBCID has not been accepted by the court concerned and still non bailable warrants have been issued against the applicants.
(vi) The judgments in the case of Vinay Tyagi Vs. Irshad Ali @ Deepak : (2013) 5 SCC 762 and Luckose Zachariah @ Zak Nedumchira Luke and others Vs. Joseph Joseph and others : 2022(2) JIC 135 (SC) has not followed by the court inasmuch as the Court has failed to appreciate that the further investigation as done was a meticulous investigation and the same should have been considered and the final report should have been accepted.
(vii) The present petition be allowed and the order dated 29.02.2024 as well as the entire proceedings be quashed.
7. Learned counsel appearing on behalf of the brother of the deceased Narayan Singh vehemently opposed the present petition and submitted as follows:
(i) There is no irregularity or illegality in the proceedings of the court concerned.
(ii) The matter is still at the stage of committal and is a matter triable by Court of Sessions.
(iii) The appropriate stage to appreciate the final report and the charge sheet is before the Court of Sessions at the appropriate stage and not by the Magistrate.
(iv) The accused applicants absconded during investigation and as such charge sheet was submitted against them as absconders but they got the investigation transferred to CBCID on the same day of court concerned taking cognizance on the said charge sheet. The accused have till date not appeared before the Court concerned and are absconding.
(v) No application for withdrawal of prosecution has been filed by the State till date.
(vi) The accused have not surrendered and filed for bail and are not on bail in the present matter despite charge sheet being submitted against them on which cognizance has been taken.
(vii) The order taking cognizance still holds good and has not been quashed or set aside by any superior court. The present petition is devoid of any merit and deserve to be dismissed.
8. Learned counsel for the State adopting the arguments of learned counsel for the brother of the deceased further reiterated the argument that no application for withdrawal of the prosecution against the accused persons has been filed by the State.
9. After having heard learned counsels for the parties and perusing the records, it is evident that although the applicants were not named in the FIR but their complicity in the matter surfaced during investigation which concluded and charge sheets against the applicants and one Dharam Pal were filed against them as absconders on which the court concerned took cognizance vide order dated 08.12.1999. On the same day i.e. 08.12.1999 the investigation in the matter was transferred by the State Government to the CBCID of which an information was given by the Investigating Officer to the CJM, Baghpat vide his letter/application dated 24.01.2000. The investigation by the CBCID concluded and subsequently a final report No. 2/2023 dated 02.11.2023 was submitted before the court concerned.
10. An application was filed by the accused persons to accept the said final report despite charge sheet being filed against them and cognizance being taken against them. The said application stood dismissed vide order dated 29.02.2024 which is impugned herein and non bailable warrants were issued against them. Even previously an order dated 31.07.2023 was passed by the CJM, Baghpat issuing non bailable warrants against the accused which was quashed by a co-ordinate Bench of this Court vide order dated 31.10.2023 (the said order has been quoted above).
11. The judgments as relied by the learned counsel for the applicant in specific terms state that if a matter is investigated and a charge sheet has been submitted after which a report is submitted in further investigation, the court concerned has to look into both the said documents and material and then take a particular view and proceed with the matter.
12. In the present case, the matter is triable by the Court of Sessions. The case is still at the stage of committal. The accused persons have neither joined the investigation and as such charge sheet were submitted against them as absconders nor have joined the proceedings before the court concerned despite its orders issuing summons. The court then issued non bailable warrants against them. Accused has to appear before the Court and follow the procedure of law. He cannot say that merely filing applications before the Court for certain things could be treated as his presence and appearance before the Court. The appreciation of the final report and material in support of is for the court concerned at the appropriate stage.
13. There is no irregularity or illegality in the order impugned which is a speaking order. The proceedings cannot be quashed merely on the ground that in a further investigation final report has been submitted against the accused even though charge sheet was submitted against them earlier on which a court has taken cognizance. The material in support of the allegations while submitting charge sheet and also while submitting final report as collected in further investigation has to be seen by the court concerned.
14. At this stage, this Court does not find it to be a fit case for interference, the present application is rejected.
Order Date :- 2.4.2024/M. ARIF (Samit Gopal, J.)