Allahabad High Court
Kunwar Shobhit Singh & Anr. vs State Of U.P. & Anr. on 4 February, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- U/S 482/378/407 No. - 29 of 2020 Applicant :- Kunwar Shobhit Singh & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- J.B. Singh Counsel for Opposite Party :- G.A. Hon'ble Chandra Dhari Singh,J.
Supplementary affidavit filed today in Court on behalf of the petitioners is taken on record.
An affidavit sworn by Shri Shailendra Rai, posted as Additional Deputy Commissioner of Police has been filed today in Court which is also taken on record.
It has been pleaded in Para - 3 of the affidavit that the officer, who is present in Court today, appeared before this Court on 09.01.2020 in compliance of order dated 08.01.2020 passed by a co-ordinate Bench, but inadvertently his presence could not be recorded in the order sheet.
The reason given is sufficient. No order is required to be passed any further in this regard.
The instant petition under Section 482 Cr.P.C. has been preferred with a prayer to quash charge-sheet no.108 of 2019 dated 24.02.2019 arising out of Case Crime No.778 of 2016 dated 24.12.2016 as well as summoning order dated 09.04.2019, under Sections 419, 420, 406 IPC, P.S. Kotwali City, District Rae Bareli in Criminal Case No.1643 of 2019 (State of U.P. Vs. Kunwar Mohit Singh and Ors.).
Learned counsel for the petitioners has submitted that informant and accused of Case Crime No.778 of 2016, registered at P.S. Kotwali Nagar, District Rae Bareli, under Sections 419, 420 & 506 IPC are relatives. A number of F.I.Rs. have been lodged against each other. Entire dispute between the parties is in regard to the property and both are claiming their title over the said property on the basis of different documents. Learned counsel has submitted that Writ Petition No.36396 (MB) of 2018 (Jaini Singh & Anr. Vs. State of U.P. & Ors.) was filed by father of the informant of Case Crime No.778 of 2016 (supra) namely Jaini Singh for quashing of F.I.R. No.681 dated 16.11.2018 and stay of arrest. Vide order dated 07.01.2019, the said writ petition was dismissed. Operative portion of which is reproduced hereunder:-
"....................
13. In view of the above, in the facts and circumstances of the case, this petition is hereby dismissed.
We hereby direct that the investigation be conducted by Superintendent of Police, (East) Lucknow, in view of the nature of the proceedings and because a number of cases have been filed in regard to the questioned document(s).
We direct the investigating officer to ensure that document dated 25.11.1994 is examined scientifically. Admitted signatures of Sardar Samsher Singh be obtained from independent sources and the signatures on the document dated 25.11.1994/questioned document be compared.
Likewise, it be investigated whether the Will was in fact executed by Sardar Samsher Singh, as per the pleaded case of the petitioners, or the typed material was inscribed on a paper, pre-signed by Sardar Samsher Singh.
14. The other first information reports/case crime numbers in which documents dated 26.06.1991, 25.11.1994 and 30.04.1996 are in question, be also investigated by the same investigating officer viz. Superintendent of Police, (East) Lucknow, in the interest of effective and practical investigation. The investigation be conducted at the earliest because considerable delay has already been caused.
15. We have handed over the original of the questioned document dated 25.11.1994 to learned counsel for the State Shri S.P. Singh in Court for onward transmission to the investigating officer.
16. Before parting with the order we make it clear that anything said in this order be not construed as finding of fact recorded by this Court. The documents, facts and circumstances have been considered only for the limited purpose of judging whether the impugned first information report is required to be quashed at this inceptive stage of investigation, or detailed investigation in the matter is required."
Learned counsel has submitted that in pursuance and direction of order dated 07.01.2019 (supra), the investigation was not transferred from Superintendent of Police, Rae Bareli to Superintendent of Police (East) Lucknow. The investigation has been completed contrary to the direction of the writ Court, as quoted above, and charge-sheet has been filed.
Learned counsel for the petitioners has invited attention of the Court towards order dated 23.09.2019 passed in Writ Petition No.30394 (MB) of 2017 (Kunwar Shobhit Singh vs. State of U.P. & Ors.) where a direction was issued to also include document dated 25.11.1994 for the purpose of investigation. Order dated 23.09.2019 (supra) reads as under:-
"Counter affidavit filed by Shri Vivek Raj Singh, Senior Advocate on behalf of respondent in Writ Petition No. 1199 (M/B) of 2019 is taken on record.
Heard Shri Ishan Baghel, learned counsel for the petitioner, Shri Vivek Raj Singh, Senior Advocate, assisted by Ms.Anantika Singh, learned counsel for respondent and Shri S.P.Singh, learned AGA.
Shri Ishan Baghel has pointed out that there was an order dated 7.1.2019, in paragraph 14 of which, it was mentioned that case crime numbers in which documents dated 26.6.1991, 25.11.1994 and 30.4.1996 are in question be also investigated by the same investigating officer; namely; Superintendent of Police,(East), Lucknow, in the interest of effective and practical investigation.
Supplementary counter affidavit has been filed by Shri S.P.Singh. In paragraph 6 of the same, he has submitted that investigation has been completed. Some of the specific documents dated 25.11.1994 which is involved in case crime no. 0778, was not included in the same.
Shri Vivek Raj Singh, has submitted that Superintendent of Police (East), Lucknow has already completed the investigation and report has already been submitted. Shri S.P.Singh, has informed that investigation is still pending. He has submitted that the investigating officer will be advised to include the document dated 25.11.1994 involved in case crime no.778 of 2016 also. At this juncture, Shri Vivek Raj Singh has submitted that in one more case no. 710 of 2017 lodged in Police Station-Hazratganj, District-Lucknow, the document mentioned in the judgment of 7.1.2019 is involved. Let the same be also investigated by the Investigating officer. This fact has been disputed by Shri Ishan Baghel. He says that this matter has already come to an end. This fact may be taken into account.
List this case on 15.10.2019.
Interim order granted earlier, shall continue, till the next date of listing only."
It has further been submitted by learned counsel for the petitioners that in deference to order dated 23.09.2019 (supra), Superintendent of Police, Vidhan Sabha Security, Lucknow sent a letter to Chief Judicial Magistrate, Rae Bareli seeking permission for further investigation. Learned counsel has submitted that there are no evidence against the petitioners on the basis of which they may be summoned and tried. It is also submitted that the Magistrate concerned, in mechanical manner, summoned the petitioners and proceeded with the case without taking into consideration the fact wrongly mentioned in the charge-sheet, which is nothing but an abuse of process of law. In such circumstances, it is evident that the entire proceeding is contrary to the directions issued by this Court, as quoted above.
Learned counsel for the petitioners has vehemently submitted that vide order dated 07.01.2019 (supra), the Division Bench of this Court directed to transfer all the matters relating to documents dated 25.11.1994, 30.04.1996 & 26.06.1991 to Superintendent of Police, (East), Lucknow. However, in violation to the said order, the Investigating Officer of the case in hand i.e. Case Crime No.778 of 2016 (supra) has deliberately filed charge-sheet on 24.02.2019 and sent the rest of the F.I.Rs. to Superintendent of Police (East), Lucknow in compliance of order dated 07.01.2019 (supra).
Learned counsel for the petitioners has submitted that the aforesaid fact is sufficient enough to establish that the entire investigation has been done with malafide intention and charge-sheet has been filed defying order dated 07.01.2019 (supra) and further the Magistrate concerned has taken cognizance upon the same without application of mind. In such circumstances, the present proceedings initiated against the petitioners is nothing but gross misuse of process of the law and the same be quashed.
Per contra, leaned AGA as well as learned counsel for respondent no.2 has vehemently opposed the submissions made by learned counsel for the petitioners and submitted that there is no illegality in the order of the Magistrate taking cognizance as there are sufficient material to establish that prima-facie case is made out against the present petitioners. Learned counsel(s) for opposite parties have submitted that vide order dated 04.09.2019 passed in Writ Petition No.30394 (MB) of 2017, order for no coercive action was passed at the interim stage of proceedings. They have submitted that the grievance of the petitioners as raised by virtue of the instant petition has already been adjudicated by virtue of orders dated 04.09.2019 & 22.10.2019 passed in Writ Petition No.30394 (MB) of 2017 & Writ Petition No.20743 (MB) of 2019, which was clubbed with Writ Petition No.30394 (MB) of 2017.
Order dated 22.10.2019 (supra) is reproduced hereunder:-
"Heard learned counsel for the petitioners as well as Mr. S.P. Singh, learned A.G.A., who has filed an affidavit of compliance, wherein the order dated 23.09.2019 has been complied with. It has been requested that since the Additional Superintendent of Police, Vidhan Sabha, who was entrusted with the job of investigation by this Court, is having so many other charges and as such he is unable to carry out the investigation efficiently. Hence, a liberty may be given to change the officer concerned.
We feel that the prayer of the opposite parties is prima facie genuine. Accordingly, we give liberty to the Director General of Police to assign this investigation to any other equal rank officer, who was conducting the matter earlier.
With this observations, the writ petitions stand disposed of."
Learned counsel(s) has submitted that, in view of the above, it is apparent that the grievance as raised in this petition has already been dealt with on earlier occasion and the same cannot be adjudicated again. Filing of the instant petition is nothing but a gross misuse of process of law and only tactics to delay the entire proceeding pending before the Court below. In such circumstances, there is no illegality in order dated 09.04.2019 (supra) passed by Magistrate concerned and the instant petition being devoid of merit be dismissed as such.
I have heard learned counsel for the parties and perused the entire record as well as the documents and affidavit(s) filed.
All the contentions raised by the petitioners' counsel relates to disputed questions of fact. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The Hon'ble Supreme Court has given the broad principles which emerge from the precedents on the subject in its judgment in the case of Prabathbai Aahir @ Prabatbhai vs. State of Gujarat (2017) 9 SCC 641.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable and impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case (supra) has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the petitioners' counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the petitioners arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
However, in this matter, after investigation, Police has found a prima facie case against accused and submitted charge-sheet in the Court below. After investigation the police has found a prima facie case of commission of a cognizable offence by accused which should have tried in a Court of Law. At this stage there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial. No substantial ground has been made out which may justify interference by this Court under Section 482 Cr.P.C.
From perusal of the record, it cannot be said that the cognizable offence is not made out against the petitioner. I do not find any sufficient ground to quash the charge-sheet as well as the proceedings of the aforesaid criminal case.
The prayer for quashing the same is refused as I do not see any abuse of the court's process either.
Accordingly, the present petition is dismissed.
Order Date :- 4.2.2020 nishant/-