Allahabad High Court
Shavez And 2 Others vs State Of U.P. And Another on 5 November, 2019
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 64 Case :- APPLICATION U/S 482 No. - 38936 of 2019 Applicant :- Shavez And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mehdi Abbas Counsel for Opposite Party :- G.A. Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 Cr.P.C. has been filed seeking the quashing of charge sheet dated 22.05.2019 as well as the entire proceedings of Case No.1181 of 2019 arising out of Case Crime No. 163 of 2018, u/s 147, 148, 149, 308, 323, 325, 336, 452, 504, 506 I.P.C., P.S.- Jarcha, District- Gautam Budh Nagar, pending in the Court of A.C.J.M., Ist, Gautam Budh Nagar.
Heard applicants' counsel and learned AGA.
Entire record has been perused.
Submission of learned counsel for the applicants is that initially an N.C.R. was lodged by the opposite party no.2 against them in which by virtue of order of Magistrate passed under Section 155(2) Cr.P.C. the investigation had taken place. Thereafter, the first informant had lodged an F.I.R. against them with the same allegation in which investigation again took place which resulted in submission of charge sheet in the present case. Submission is that registration of subsequent F.I.R. for the same occurrence against the same accused persons was not permissible in the eyes of law and if criminal proceedings were allowed to proceed on the basis of charge sheet so submitted, it will amount to abuse of process of law. Further submission is that investigation of F.I.R. which was registered as Case Crime No. 163 of 2008, was in fact re-investigation, which was also not permissible. Other contentions have also been raised by the applicants' counsel but all of them relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
So far as the law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is concerned, the same is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
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 cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
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 above referred 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 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 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.
A perusal of the record of the present case shows that on 1.7.2018 an N.C.R. No. 98 of 2018 was lodged by the opposite party no. 2 against the applicants and co-accused Rihan under Sections 323, 504, 506 I.P.C. As per N.C.R. version on 30.6.2018 the accused persons had threatened the first informant and others and had made an assault upon them and had also abused them. As per N.C.R. five persons namely Mahtab Ali, Kamal, Hasin Abbas, Aftab and Kr. Zeba had sustained injuries. It seems that the opposite party no.2 had filed an application under Section 155(2) Cr.P.C. before the court below for investigation in pursuance of the allegations made in the N.C.R. which was allowed by the Magistrate concerned vide order dated 12.7.2018 and the S.H.O. concerned was directed to investigate the case. The investigation commenced and the Investigating Officer had recorded statement of the first informant on 19.7.2018. The applicants and the co-accused Rihan had obtained bail in N.C.R. No. 98 of 2018, under Sections 323, 504, 506 I.P.C. on 19.7.2018. The statement of some of the injured persons were also recorded by the investigating officer on 21.7.2018 and 11.8.2018. On the other hand, the injured persons were medically examined and it was found that the injured Kamal had sustained a fracture of frontal bone in the said assault. There was fracture found on left clavical of injured Hasin Abbas. The injuries of Aftab was also found grievous in nature.
A perusal of purcha no. 7 of case diary, photocopy of which has been annexed as annexure no. 10 to the present affidavit, shows that on the basis of medical evidence Sections 325 and 308 I.P.C. were added and N.C.R. No. 98 of 2018, was accordingly converted into Case Crime No. 163 of 2018, under Sections 323/325, 504, 506, 308 I.P.C. It has also been mentioned that further investigation would be conducted for the offences punishable under Sections 323, 325, 504, 506, 308 I.P.C. However, it seems that on the basis of the earlier application which was given by the first informant for lodging of his N.C.R. a fresh Check F.I.R. was again executed by the police at P.S. Jarcha, District Gautam Budh Nagar and a separate crime no./F.I.R. No. 163 of 2018 was assigned to it. In this Check F.I.R. sections were mentioned as 308, 323, 325, 504, 506 I.P.C. Thereafter the investigating officer proceeded with the investigation of the present case and recorded statement of witnesses including that of injured persons as their second statement (Majid Bayan). Ultimately on the basis of material collected during investigation which includes the medical reports, the investigating officer had submitted charge sheet against the applicants and some other co-accused persons for the offence punishable under Sections 147, 148, 149, 308, 323, 325,336, 452, 504, 506 I.P.C. A perusal of F.I.R. No. 163 of 2018 would reveal that it was verbatim the same as the contents of N.C.R. No. 98 of 2018. In fact, it is fallacious to state that investigation with respect to N.C.R. No. 98 of 2018 was dropped and de-novo investigation was started as is clear from annexure no. 10 showing that during investigation upon the N.C.R. the investigating officer had found that the acts of the applicants did constitute some cognizable offences. Therefore, the said N.C.R. was converted into present F.I.R. Investigation thereafter was conducted by the then investigating officer as subsequent investigation. Applicants had not faced two investigations or two different court proceedings for the same cause of action. Preparation of new Check-Report was although not much needed as without it also, a charge sheet for committing cognizable offences could or would have been submitted by the investigating officer. It could also have been just sufficient to alter the case from non-cognizable offence into cognizable offence and make an entry to the same effect in the G.D. of police station. Issuance of or executing a fresh or new or further Check-Report was simply a superfluous exercise. But merely the fact that a new crime number was assigned and a Check F.I.R. was also executed, does not necessarily adversely affect the proceedings in any vital manner nor the applicants can claim that they have been prejudiced by this act. The F.I.R. of case crime no. 163 of 2018, was not a second F.I.R. rather it was a conversion of earlier N.C.R. No. 98 of 2018 into a cognizable report. Even the investigation which was conducted in pursuance of N.C.R. No. 98 of 2018, got merged in the subsequent investigation of the present case and it remained a continued process which is neither illegal nor can be termed as any kind of abuse of process of law.
Learned counsel for the applicants had placed reliance upon the judgement of Hon'ble Apex Court given in T.T. Antony vs. State of Kerala (2001) 6 Supreme Court Cases 181 in support of his contention. In aforesaid case initially two different FIRs were lodged as case crime nos.353 of 1994 and 354 of 1994 at police station Kuthuparamba by different police authorities regarding the incidents which took place on 25.11.1994 in which some persons had lost their lives while the investigation on the basis of two FIRs were still pending on the basis of a report of an inquiry commission, the superior police authorities had directed to take legal action against those responsible for firing without justification as a result of which people were killed. As were directed, the officer in charge of concerned police station registered another FIR as case crime no.268 of 1997 at police station Kuthuparamba. After registration of this FIR as case crime no.268 of 1997, earlier FIRs i.e. case crime nos.353 and 354 of 1994 were closed sometimes in April, 1999 and June 1999. It is clear from T.T. Antony's case (supra) that different FIRs were lodged by different first informants and the Hon'ble Apex Court was of the opinion that in truth and substance the essence of the two FIRs were same and therefore lodging of the second FIR was unwarranted and illegal. It was found by Hon'ble Apex Court that the FIRs in case crime nos.353 and 354 of 1994 on one hand and the FIR in case crime no.268 of 1997 on the other hand disclosed that the date and place of occurrence were the same, there was alluding reference to the death caused due to firing in the FIRs in case crime no.353 and 354 of 1994. Therefore Hon'ble Apex Court has held that registration of the second FIR i.e. FIR of case crime no.268 of 1997 registered in police station Kuthuparamba was not valid and the investigation consequent to it was of no legal consequence and therefore was accordingly quashed. However, Hon'ble Apex Court had given permission to the investigating agency for seeking leave of the court in case crime nos.353 and 354 of 1994 for making further investigation and filing of further report or reports under section 173(8) Cr.P.C. before the competent Magistrate in the said cases. In the present case at hand admittedly there are no two FIRs. The first information given by the complainant to the concerned police station was treated as N.C.R. as it relates to commission of non-cognizable offences. After getting permission from the Magistrate concerned when the investigating officer started investigation of the present case he found on the basis of material collected during investigation especially medical reports that applicant had committed cognizable offences and therefore the same N.C.R. was virtually converted into FIR. Certainly, conversion of N.C.R. into a cognizable report i.e. FIR, on the basis of material collected during investigation cannot be termed as illegal. At the most it was a superfluous act and only an entry in the G.D. showing conversion of non cognizable offence into cognizable offence would have very well sufficed. Thus then case law relied upon by applicant's counsel does not help him to any great extent. Reliance has also been placed by the counsel for the applicants as well as by the counsel for the first informant/opposite party no. 2 on the judgement of Amit Bhai Anil Chandra Shah Vs. C.B.I. and another, 2013 (6)SCC 348 and 2013 Law Suit (SC) 291. In this case an FIR No.RC No.4S2010 was lodged on 1.2.2010 the CBI conducted investigation and submitted charge-sheet on 23.07.2010. Thereafter a supplementary charge-sheet was also submitted by CBI on 12.10.2010. In the aforesaid charge-sheet the investigating agency had reached to a conclusion that conspiracy to kill Sohrabuddin and Kausar Bi and conspiracy to kill Tulsiram Prajapati were part of the same transaction. Later on, the CBI had lodged second FIR being No.RC-3 (S/2011) Mumbai on 29.04.2011 to investigate the death of Tulsiram Prajapati who was a material witness to the killings of Sohrabuddin and Kausar Bi. After investigation the CBI had submitted charge-sheet in this case also on 4.9.2012. The second/ fresh FIR dated 29.04.2011 and the resultant charge-sheet dated 4.9.2012 was challeged before Hon'ble Apex Court on the ground of it being violative of fundamental rights guaranteed under Articles 14,20 and 21 of the Constitution. Hon'ble Apex Court had held that filing of second FIR and fresh charge-sheet was violative of fundamental rights guaranteed under Articles 14,20 and 21 of the Constitution of India since the same related to alleged offence in respect of which an FIR had already been filed and the court had taken cognizance. Hon'ble Apex Court found that as the killing of Tulsiram Prajapati was the part of same series of cognizable offences forming part of the first FIR. Therefore filing of fresh FIR was unwarranted and bad in the eyes of law, therefore, Hon'ble Apex Court had quashed the second FIR dated 29.4.2011. However, the Apex Court had directed that the charge-sheet filed on 4.9.2012 in pursuance of the second FIR be treated as supplementary charge-sheet in the first FIR. It is clear that in the case of Amit Bhai Anil Chandra Shah (supra) two different FIRs were lodged, each of which resulted in submission of different charge-sheets. In the present case no police report u/s 173(2) Cr.P.C. was filed on the basis of investigation which was carried out in respect of N.C.R. No.98 of 2018. During the course of initial investigation itself the N.C.R. was converted into FIR and eventually only one charge-sheet was submitted against the applicants with regard to same occurrence. Admittedly in the present case there are neither two FIRs nor different charge-sheets filed against the applicants for the same cause of action. The factual circumstances and evocular of events of the present case has no semblance with Amit Shah's case and in the absence of filing of any earlier police report the verdict of Hon'ble Apex Court given in Amit Bhai Anil Chandra Shah (supra) case does not help the contentions raised by applicants counsel at all. Admittedly, charge-sheet was not filed by the police in N.C.R. no.98 of 2018 and therefore no question arises for the Magistrate to take cognizance of the same. Only one police report report i.e. charge sheet of the present case has been submitted by the police in the present case upon which the Magistrate had taken cognizance. Conversion of N.C.R. into F.I.R. during investigation after finding the fact that the accused persons had caused serious injuries to victim and had thereby committed cognizable offence, is neither illegal nor impermissible. Investigation done by the police in pursuance of Case Crime No. 163 of 2018 cannot be termed as illegal as in fact the earlier investigation done by the investigating officer is already part of the present case and in fact it was a merger of two phases of investigation, one that took place in pursuance of N.C.R. with permission of Court and another which took place after alteration of non-cognizable case into a cognizable one.
The other submissions made by the applicants' learned 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 applicants 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.
The prayer for quashing the same is refused as I do not see any abuse of the court's process either.
The application therefore cannot be allowed and stands dismissed.
In the last, before closing on, this Court wants to bring on record its unreserved admiration for the brilliant assistance that has been rendered by learned A.G.A. Shri Rupak Chaubey, who during the course of argument has not only displayed complete mastery on facts but has also shown an equally commendable understanding of law. His performance has been exemplary and worth emulation by his fellow peers.
Order Date :- 5.11.2019 shiv/ Naresh.