Allahabad High Court
Deepak Kumar Singh vs State Of U.P. And Another on 4 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2426
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 83 Case :- CRIMINAL REVISION No. - 1596 of 2021 Revisionist :- Deepak Kumar Singh Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Chandrakesh Mishra,Daya Shankar Mishra(Senior Adv.) Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Daya Shankar Mishra learned Senior Counsel assisted by Mr. Chandrakesh Mishra, learned counsel for revisionist and learned A.G.A for State.
2. This criminal revision under Section 397/401 Cr. P. C. has been filed challenging Cognizance Taking Order/Summoning Order dated 22.06.2021 passed by Chief Judicial Magistrate, Basti in Case No. 2167 of 2017 (State Vs. Sub-Inspector Deepak Kumar Singh) under Sections 323, 325, 342, 504, 506, 354A, 354B, 354D, 427, 452 I.P.C. and Section 67 I. T. Act. , Police Station Kotwali, District Basti.
3. Record shows that in respect of an incident, which is alleged to have occurred on 30.08.2020, a delayed F.I.R. dated 09.03.2021 was lodged by first informant/opposite party-2, Kajal Singh, which was registered as Case Crime No.0109 of 2021 under Sections 323, 324, 211, 342, 504, 506, 354, 354Ka, 354 Kha, 354Ga, 354Gha, 452, 120-B I.P.C. and Section 67 I. T. Act. , Police Station Kotwali, District Basti. In the aforesaid F.I.R., as many as 14 persons, namely S.I. Deepak Singh, S.I. Rajan Singh, S.I. Abhishek Singh, Constable Sanjay Kumar, Woman Constable Neelam Singh, Inspector Sheela Yadav, Inspector Rampal Yadav, Constable Alok Kumar, Constable Pawan Kumar Kushwaha, Constable Awadhesh Verma, Halka Lekhpal Shalini Singh, Kanoongo Satish have been nominated as named accused whereas 2-3 Police Constables and relatives of first informant/opposite party-2 have also been nominated as accused.
4. In brief the prosecution story as unfolded in F.I.R., alleges that named accused Deepak Singh committed such acts which dislodged the modesty of first informant/opposite party-2. Upon resistence shown by first informant/opposite party-2, criminal proceedings have been initiated against family members of first informant/opposite party-2.
5. After registration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of above mentioned case crime number in terms of Chapter XII Cr.P.C. Investigating Officer recorded statements of various witnesses including that of first informant/opposite party-2 under Section 161 Cr.P.C. On the basis of statements of witnesses and other material collected during course of investigation, Investigating Officer concluded that a charge-sheet should be submitted. Accordingly, Investigating Officer submitted a charge-sheet whereby applicant alone has been charge-sheeted under Sections 323, 325, 342, 504, 506, 354A, 354B, 354D, 427, 452 I.P.C. and Section 67 I. T. Act. After submission of aforesaid charge-sheet, cognizance was taken upon same, vide Cognizance Taking Order dated 22.06.2021 passed by Chief Judicial Magistrate, Basti. As a result of above, Case No. 2167 of 2017 (State Vs. Sub-Inspector Deepak Kumar Singh) under Sections 323, 325, 342, 504, 506, 354A, 354B, 354D, 427, 452 I.P.C. and Section 67 I. T. Act. , Police Station Kotwali, District Basti came to be registered. Thereafter, Chief Judicial Magistrate, Basti passed an order dated 22.06.2021, whereby concerned Magistrate took cognizance and simultaneously summoned the accused/revisionist vide order dated 22.06.2021.
6. Feeling aggrieved by Cognizance Taking Order/Summoning Order dated 22.06.2021, revisionist, who is a charge-sheeted accused, has now approached this Court by means of present Criminal Revision.
7. Mr. Daya Shankar Mishra, learned Senior Counsel assisted by Mr. Chandrakesh Mishra, learned counsel for revisionist in support of present criminal revision submits that Cognizance Taking Order dated 22.06.2021 passed by Chief Judicial Magistrate, Basti upon charge sheet is a non-reasoned order. Placing reliance upon judgements/orders of this Court in Application U/s 482 No.-238 of 2021 (Rahul and 3 others Vs. State of U.P. and another) decided on 05.02.2021 and Application U/S 482 No.-13883 of 2020 (Ashu Rawat Vs. State U.P. and another) decided on 29.09.2020, he contends that Magistrate was required to pass a reasoned order for taking cognizance. As Cognizance Taking Order passed by concerned Magistrate as contained in the charge-sheet is devoid of reasons, same cannot be sustained and therefore liable to be quashed by this Court.
8. In continuation of his challenge, learned Senior Counsel further contends that in the F.I.R. dated 20.03.2021 as many as 14 named accused have been nominated alongwith some unknown accused namely 2-3 Police Constables and relatives of first informant. However, charge-sheet has been submitted only against revisionist. As such, revisionist alone has been singled out for criminal prosecution. Chief Judicial Magistrate, Basti, while passing Cognizance Taking Order/Summoning Order dated 22.06.2021 failed to consider this aspect of matter. Concerned Magistrate did not apply his mind to the material on record including charge-sheet to find out whether on the basis of police report and material appended alongwith the same, complicity of other accused was also established in the crime in question or not. As such, concerned Magistrate has failed to exercise the jurisdiction vested in him under Section 190 (1) (b) Cr.P.C. with due diligence.
9. He further submits that F.I.R. was lodged by first informant/opposite party-2 against revisionist and others under Sections 323, 324, 211, 342, 504, 506, 354, 354A, 354 B, 354C, 354D, 452,120-B I.P.C. and Section 67 I. T. Act. However, the charge-sheet has been submitted under Sections 323, 325, 342, 504, 506, 354A, 354B, 354D, 427, 452 I.P.C. and Section 67 I. T. Act. Referring to ground nos. 10 and 11 of the grounds of revision, it is urged by learned Senior Counsel that the same creates a doubt in the prosecution case which has not been taken into consideration by court concerned at the time of taking cognizance. This omission on the part of concerned Magistrate vitiates the Cognizance Taking Order passed by him.
10. On the aforesaid premise, Mr. Daya Shankar Mishra, learned Senior Counsel, therefore, contends that this Court in exercise of its jurisdiction under Section 397 (1) read with Section 482 Cr.P.C. can not only quash the Cognizance Taking Order/Summoning Order dated 22.06.2021, but also the charge-sheet.
11. It is lastly submitted by learned Senior Counsel that revisionist is a public servant as he is working as Sub-Inspector in U.P. Police. Charge-sheet has been submitted against revisionist in respect of certain cognizable offences. Revisionist has been enlarged on interim bail vide order dated 11.06.2021 which is effective upto 02.08.2021. Placing reliance upon judgement of Apex Court in Arnab Manoranjan Goswami vs. State of Maharastra A.I.R. 2021 Supreme Court 1, it is contended that though bail application of applicant is pending before court below, yet this Court in exercise of its jurisdiction under Section 397/482 Cr.P.C., can protect liberty of revisionist by extending him bail.
12. Per contra, learned A.G.A. has opposed this application. He submits that under the scheme of Criminal Procedure Code (Cr.P.C.), (hereinafter referred to as the Code), cognizance is of crime and not that of criminal. An accused acquires a right to challenge the proceedings only when he has been summoned. He, therefore, submits that an accused has no right to challenge Cognizance Taking Order. Elaborating his submission, learned A.G.A. further submits that by virtue of Section 114 (e) of Indian Evidence Act, there is a presumption with regard to the correctness of a judicial order. Admittedly, Cognizance Taking Order is a judicial order and is referable to Section 190 of the Code. No ground has been raised in the revision challenging the correctness of Cognizance Taking Order in relation to facts of the case, as to how same is illegal or without jurisdiction. It is thus urged by learned A.G.A. that submission urged by learned Senior Counsel that Cognizance Taking Order is not a reasoned order is a half hearted attempt to challenge the same. Irregularity and illegality are two different words having different connotations and meaning. Mere irregularity cannot be taken as a ground to quash an order until and unless it is established that prejudice has been caused to accused on account of a non-reasoned Cognizance Taking Order, same cannot be set aside by this Court.
13. Learned A.G.A. further submits that though by means of this revision challenge is being made to the Cognizance Taking Order dated 22.06.2021 passed by Chief Judicial Magistrate, Basti, on the charge-sheet, however certified copy of the charge-sheet itself has not been appended alongwith Memo of Revision. As such, present criminal revision is defective in so far as it attempts to challenge the Cognizance Taking Order contained in the charge-sheet. Revisional Court cannot exercise its jurisdiction on a defective Memo of Revision as a defective revision is no revision in the eyes of law.
14. In opposition to present revision, learned A.G.A. contends that Chief Judicial Magistrate has passed a Cognizance Taking Order dated 22.06.2021 on the charge-sheet and has also passed a separate Cognizance Taking Order /Summoning Order. Therefore, even if order dated 22.06.2021 passed on the charge-sheet is set aside by this Court, yet a Cognizance Taking Order still survives. Therefore, challenge to the Cognizance Taking Order passed on the charge-sheet is meaningless.
15. With regard to the submission of charge-sheet against revisionist under such Sections, which are not mentioned in F.I.R., learned A.G.A contends that the statutory investigation of a Case Crime Number which relates to cognizable offences or otherwise is not circumferenced by the charging sections mentioned in the F.I.R. The scope of investigation provided under Chapter XII Cr.P.C. is far and wide. Imposition of charging Sections comes into play on the basis of material collected during course of investigation. In fact, charge-sheet is the culmination of material collected during course of investigation. No ground has been raised in the Memo of Revision regarding the defects/illegality in investigation on the basis of which the charge-sheet could be said to be tainted and therefore, liable to be quashed. It is thus vehemently urged that simply on aforesaid ground the charge-sheet or the Cognizance Taking Order cannot be quashed by this Court.
16. Regarding scope of present criminal revision, learned A.G.A. contends that since revisionist has appended certified copy of order dated 22.06.2021 by which Chief Judicial Magistrate, Basti has taken cognizance and simultaneously summoned the revisionist, validity of the same alone can be looked into. Therefore, scope of this revision is confined only to aforesaid order and nothing else.
17. Learned A.G.A. further contends that revisionist is on interim bail which is effective up to 02.08.2021. The power to grant bail emanates from Sections 438 and 439 of the Code. It is thus urged that once there is specific provision for bail in the Code itself, jurisdiction under Section 397 (1) read with Section 482 of the Code cannot be invoked for the purpose of bail.
18. On the cumulative strength of aforesaid submissions, learned A.G.A. contends that order impugned in present criminal revision does not suffer from the vice of jurisdictional error nor court below has exercised its jurisdiction with material irregularity warranting interferrence by this Court. Consequently, present criminal revision is liable to be dismissed.
19. Considered the rival submissions urged by Mr. Daya Shankar Mishra, learned Senior Counsel assisted by Mr. Chandrakesh Mishra, learned counsel for revisionist and learned A.G.A for State.
20. The first and formost issue, which arises for consideration is regarding the scope of present criminal revision. Upon perusal of record, the Court finds that in the prayer clause of this revision, the revisionist has challenged order dated 22.06.2021, which has been passed subsequent to registration of Criminal Case No. 2167 of 2021 ( State Vs. S. I. Deepak Kumar Singh) under Sections 323, 325, 342, 504, 506, 354A, 354B, 354D, 427, 452 I.P.C. and Section 67 I. T. Act. , Police Station Kotwali, District Basti, whereby court below has taken cognizance and simultaneously summoned the revisionist.
21. It may be noted here that revisionist has not filed certified copy of charge-sheet upon which cognizance was taken by concerned Magistrate vide order dated 22.06.2021. Furthermore, in the prayer clause of this revision, no prayer has been made regarding quashing of Cognizance Taking Order dated 22.06.2021 passed by concerned Magistrate on the charge-sheet. Apart from above, the Court finds that concerned Magistrate has passed a separate Cognizance Taking Order/Summoning Order, therefore, irrespective of above, there exists a separate Cognizance Taking Order/Summoning Order against revisionist.
22. The validity of the charge-sheet submitted against revisionist cannot be examined by this Court in present criminal revision inasmuch as neither there is a prayer to set aside/quash the same in prayer clause of revision nor the certified copy of charge-sheet has been appended alongwith Memo of Revision. Moreover, no ground has been raised in te grounds of revision to demonstrate the defects/illegality in investigation.
23. Thus, on the basis of above, the Court concludes that scope of present criminal revision is confined only to the validity of Cognizance Taking Order/Summoning Order dated 22.06.2021 passed by court below.
24. The main thrust of arguments urged by learned Senior Counsel for revisionist is that impugned Cognizance Taking Order/Summoning Order is not a reasoned order and therefore, liable to be quashed. To butress his submission, he has relied upon two decisions of which reference has already been made above. On the submissions urged by learned Senior Counsel, issue which arises for consideration before this Court is whether Magistrate is required to pass a reasoned and detailed order while taking cognizance and summoning the accused in a case, which comes into existence upon submission of a police report under Section 173 (2) Cr.P.C., which in this case is a charge-sheet.
25. It may be noticed here that summoning of an accused in a complaint case and taking of cognizance upon police report are two different things. What shall be the parameters for judging a Cognizance Taking Order or a summoning order in respective cases is no longer res-integra and stands settled by judgement of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499. With due respect, aforesaid judgement of Apex Court has not been considered in the judgements/orders relied upon by learned Senior Counsel. Paragraphs 22 and 37 of above judgement, which are relevant for the controversy in hand are reproduced herein-below:-
"22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offenceunder Sections420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.
37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
26. The Court further finds that no ground has been taken in the Memo of Revision to demonstrate that on the material available on record, none of the charging Sections is attracted against revisionist. Therefore, the charge-sheet so submitted is not liable to be interfered with. No specific ground has been taken regarding any such Section/sections under which charge-sheet has been submitted against revisionist to the effect that from the material on record no offence in respect of such Section/Sections is made out against revisionist. In the absence of above, no illegality can be attached to the impugned Cognizance Taking Order/Summoning Order passed by court below. Furthermore, Cognizance Taking Order/Summoning Order is a judicial order referable to Sections 190 and 204 of the Code. By virtue of Section 113 (e) of Indian Evidence Act, there is a presumption regarding correctness of a judicial order. The burden to rebut this presumption shall be upon person, who challengs the same. As noted above, no specific ground has been taken in the Memo of Revision regarding illegality in the Cognizance Taking Order in the light of what has been stated above. Consequently, in view of above and authoritative pronouncement of Apex Court as noticed above, no illegality or perversity can be said to be in existence in impugned Cognizance Taking Order/Summoning Order dated 22.06.2021 passed by Chief Judicial Magistrate, Basti.
27. Coming to the last point of consideration, which is regarding liberty of revisionist, the Court finds that revisionist is already on interim bail which has been granted by court below itself vide order dated 11.06.2021. Apprehension expressed by learned Senior Counsel regarding liberty of applicant and consequently, protection of same by this Court in the light of judgement of Apex Court in Arnab Manoranjan Goswami (supra), the Court finds that apprehension expressed by learned Senior Counsel is misconceived. Apex Court in above noted judgement granted interim bail to the petitioner therein, in view of peculiar facts and circumstances of above noted case. Revisionist is already on interim bail which was effective upto 02.08.2021.
28. Present criminal revision was heard on 27.07.2021 and matter was posted for 30.07.2021 for orders. Since Court itself was not available on 27.7.2021 and 28.7.2021, it was directed that matter shall come up on 04.08.2021 and till then liberty of revisionist was protected by providing that no coerceive action shall be taken against revisionist. Consequently, anxiety expressed by learned Senior Counsel is misconceived.
29. For the facts and reasons recorded above, this Court finds that Chief Judicial Magistrate, Basti while passing impugned Cognizance Taking Order/Summoning Order dated 22.06.2021 has not committed a jurisdictional error nor has the concerned Magistrate exercised his jurisdiction with material irregularity warranting interference by this Court.
30. Consequently, present criminal revision fails and is liable to be dismissed.
31. It is accordingly dismissed.
Order Date :- 4.8.2021 YK