Allahabad High Court
Narendra @ Goli And Another vs State Of U.P. And Another on 20 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:-30.09.2019 Delivered On:-20.11.2019 Case :- APPLICATION U/S 482 No. - 17412 of 2016 Applicant :- Narendra @ Goli And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pankaj Kumar Shukla Counsel for Opposite Party :- G.A.,Saurabh Gour,Sweashwa Agarwal Connected With Case :- APPLICATION U/S 482 No. - 15246 of 2016 Applicant :- Rameshwar Upadhyay Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pankaj Kumar Shukla Counsel for Opposite Party :- G.A.,Shishir Prakash,Swetashwa Agarwal AND Case :- APPLICATION U/S 482 No. - 17410 of 2016 Applicant :- Hariom And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pankaj Kumar Shukla Counsel for Opposite Party :- G.A.,Saurabh Gour,Swetashwa Agarwal Hon'ble Om Prakash-VII,J.
1. Since all the aforesaid applications are related to same Crime Number and were heard together, they are being decided by a common judgment and order.
2. Heard Shri Pankaj Kumar Shukla, learned counsel appearing for the applicants and Shri A.B.L. Gaur, learned Senior Advocate assisted by Shri Swetashwa Agarwal, learned counsel for the opposite party no. 2 as well as learned AGA for the State.
3. These applications u/s 482 Cr.P.C. have been filed by the applicants with the prayer to quash the entire proceedings of Criminal Case No. 3949 of 2014 (State Vs. Narendra & Goli and others) arising out of Case Crime No. 172 of 2013, under Sections 392, 307, 323, 504, 109, 147 IPC, Police Station Kotwali, District Hathras pending in the court of Chief Judicial Magistrate, Hathras. Further prayer has been made to stay the further proceedings of the aforesaid case.
4. It was submitted by learned counsel for the applicants that cognizance taken in the matter is illegal. Initially in the FIR, only names of Narendra @ Goli and Rajesh Sharma were disclosed. Two persons were shown as unknown. FIR was lodged after a gap of about five hours. If applicants Rameshwar Upadhyay, Hariom and Dhruv Sharma were involved in the incident, their names must have found place in the FIR itself as informant claimed himself to be eye witness of the incident. It was further submitted that first Investigating Officer did not find the facts mentioned in the FIR as true. On the application of the opposite party no. 2, investigation was transferred to District Etah from District Hathras. Nothing new was stated by the witnesses in their statements during investigation being conducted by the second Investigating Officer, except supporting the affidavit filed by them earlier. It was further submitted that second Investigating Officer did not interrogate the independent witnesses. Offence under Section 307 IPC is not made out. Cognizance taken in the matter is illegal and without application of judicial mind. There was no sufficient evidence to take cognizance for the offence under Section 307 IPC. It was next submitted that affidavit filed during investigation as well as the statements recorded by the second Investigating Officer on the basis of the affidavit is hit by provision of Section 162 Cr.P.C. At this juncture, learned counsel for the applicants referring to the statement of witnesses recorded by the second Investigating Officer also referred the provisions of Sections 161 & 162 Cr.P.C. and further argued that continuation of the proceedings of the aforesaid criminal case against the applicants are abuse of process of law. Applicants Rameshwar, Hariom and Dhruv Sharma were charge sheeted in the present matter only on the basis of suspicion. No specific role has been assigned against them.
5. On the other hand, learned AGA as well as learned Senior Advocate appearing for the opposite party no. 2 argued that there is no illegality, infirmity or perversity in the impugned order. Delay in lodging the FIR has no relevance as FIR was lodged within five hours of the incident. Although all the applicants were not named in the FIR yet they actually participated in commission of the present offence. Since the first Investigating Officer was not investigating the case properly, on the application of informant, higher authority has rightly transferred the investigation from Hathras to Etah. Referring to statements of witnesses recorded by the second Investigating Officer under Section 161 Cr.P.C., it was also argued that these statements are not hit by the provisions of Section 162 Cr.P.C. Merely on the basis that affidavits have also been filed by the witnesses in support of the complaint made against the first Investigating Officer, the statements recorded under Section 161 Cr.P.C. cannot be taken as false. It was further submitted that present prosecution was not started maliciously or in rivalry. It was next submitted that prosecution case is fully supported with medical evidence. Witnesses have clearly stated about involvement of all the applicants in commission of the present offence. If FIR was lodged naming only two persons then also the statement of injured cannot be brushed aside. Injured has clearly supported the prosecution case. It is not a case in which concerned Magistrate ought to have proceeded under Chapter XV of the Cr.P.C. Since there was sufficient evidence in the case diary itself to take cognizance on the charge-sheet, Court has rightly taken cognizance in the present matter on the basis of evidence collected during investigation. It was further submitted that this court cannot scrutinize the evidence at this stage at par with trial. Only a prima facie case is to be seen. At this juncture, learned counsel for the opposite party no. 2 has placed reliance on the law laid down in the case of Vinod Raghuvanshi Vs. Ajay Arora and others, 2013 LawSuit(SC) 985.
6. I have considered rival submissions made by the learned counsel for the parties and have gone through the entire record including the case law relied upon in the matter.
7. Facts of the present matter, in brief, are that one FIR at Case Crime No. 172 of 2003 under Sections 392, 307, 323, 504 IPC, Police Station Kotwali Hathras, District Hathras was registered on 27.03.2013 at 05:00 PM regarding the offence said to have been committed on 27.03.2013 at 12:30 PM with the details that informant's nephew Rajat Agarwal, Member of Legislative Assembly belonging to Samajwadi Party, was going to the house of his uncle on his scooty. Informant was also following him alongwith one Kapil Agarwal on his motorcycle. As and when Rajat Agarwal reached in front of the house of Rambir Upadhyay, applicants Narendra @ Goli and Rajesh Sharma, the accused persons employed as Gunners of Rameshwar Upadhyay, and two unknown persons armed with Rifle and Gun, stopped him and started beating and abusing. They also snatched a golden locket. When informant and Kapil Agarwal rushed to save Rajat Agarwal, accused persons opened fire upon informant also but he saved himself. It has also been disclosed in the FIR that accused persons after committing the offence entered into the house of Rambir Upadhyay. It appears that after registration of the FIR, matter was being investigated by the police of District Hathras but during investigation an application was moved by the opposite party no. 2 to transfer the investigation, which was transferred from District Hathras to District Etah. Recording the statement under Section 161 Cr.P.C. of the witnesses, investigation was completed by the second Investigating Officer of District Etah. It further appears that charge-sheet was submitted in the present matter against the applicants for the offence under Sections 392, 307, 323, 504, 109/147 IPC. It is also evident that cognizance was taken in the matter by the concerned Magistrate on the charge-sheet, thereafter, present applications were filed challenging the cognizance order.
8. Before dwelling into the submissions raised across the Bar as well as the facts and evidence of the present matter, I find it necessary to quote paragraph no. 19 of Vinod Raghuvansi case (supra), which is as under:
"19. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a still born child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein. More so, the charge sheet filed or charges framed at the initial stage can be altered / amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Code of Criminal procedure So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial court at a later stage."
9. It will also be appropriate to quote paragraph 7 of the judgment of Apex Court in Eicher Tractors Ltd. Vs. Harihar Singh, 2008 LawSuit (SC) 1643, which is as under:
"7. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
10. First and foremost question raised on behalf of applicants is regarding application of provisions of Section 162 Cr.P.C. in the matter. In this case, admittedly on the basis of complaint made by the informant/opposite party no. 2 investigation was transferred by the Competent Authority from district Hathras to Etah. It is also evident from the record that the witnesses said to be interrogated by the first Investigating Officer gave affidavit in support of the complaint. The second Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. independently to the statement of the witnesses recorded by the first Investigating Officer. Nothing is on record to show that second Investigating Officer obtained signature on the subsequent statements of the witnesses recorded under Section 161 Cr.P.C. Merely on this basis that complaint made against first Investigating Officer was supported with affidavits of witnesses, it cannot be held that provisions of Section 162 Cr.P.C. are applicable in the present matter and the subsequent statement recorded under Section 161 Cr.P.C. will be hit by the provisions of Section 161 Cr.P.C. Thus, submissions raised by learned counsel for the applicants on this count is not acceptable.
11. As far as transfer of investigation from district Hathras to Etah is concerned, it was done by the competent authority on the basis of complaint made by the complainant and on this basis order taking cognizance cannot be set aside / quashed.
12. So far as the accused not named in the FIR but named in the charge sheet are concerned, cognizance order is also taken for the offence under Section 109 IPC. The injured has clearly stated the names of all applicants for committing the present offence. The informant in his statement recorded by the second Investigating Officer as well as other witnesses have also supported this fact. Since FIR is not an encyclopedia and its purpose is only to set the law in motion in criminal cases, it is not always necessary to describe all details in the FIR. In this matter, in the FIR, two persons were named and two persons were shown as unknown. Charge sheet was submitted against five persons. If statements of witnesses recorded under Section 161 Cr.P.C. by the second Investigating Officer are taken into consideration in consonance with the submissions raised by learned counsel for the parties as well as the ingredients of the offence for which cognizance was taken by the court below, no illegality, infirmity or perversity is found. Informant has specifically stated that when he tried to save the injured, the accused persons opened fire upon him with intention to kill him. If such is the position, at this stage, it cannot be said that offence under Section 307 IPC is not made out. All the ingredients required to constitute the offence under Section 109 IPC are also available in the present matter.
13. As regards the plea regarding political rivalry between the parties is concerned, it is not disputed that injured was a Member of Legislative Assembly but this fact alone is not sufficient to hold that in the present matter FIR was lodged on the basis of political rivalry. It is also pertinent to mention here that merely pendency of several criminal cases between the parties will also not be sufficient to hold that present prosecution was started in counter blast with malafide intention only to wreak the vengeance. Enmity is the double edged weapon which may be a reason to commit an offence and at the same time it may also be a reason for false implication. Thus, at this stage, on this count also cognizance order cannot be said to be illegal. It is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate/ Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima-facie case has been made out to summon the accused person or not. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence as is done after recording the evidence in trial. In this case from the material available on record, at this stage it cannot be said that no prima facie case is made out against the applicants. Further, to decide the plea raised before this Court leading of evidence would be required, which can appropriately be done before the court concerned at appropriate Stage. Hence, the prayer made in the present applications are refused.
14. In view of the aforesaid discussions, I am of the opinion that there is no force in the submissions made by the learned counsel for the applicants. The Magistrate did not err in taking cognizance in the matter. There is no illegality, infirmity, impropriety or perversity in the impugned order. The applications being devoid of merits are liable to be dismissed.
15. The applications are accordingly dismissed.
16. Copy of this order be also placed on the records of Application u/s 482 Nos. 15246 of 2016 and 17410 of 2016.
Order Date:- 20.11.2019 Sanjeet