Allahabad High Court
Jawahar Lal Vats And Another vs State Of U.P. And Another on 25 October, 2024
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:172248 Reserved on 30.04.2024 Delivered on 25.10.2024 Court No. - 85 Case :- APPLICATION U/S 482 No. - 8882 of 2009 Applicant :- Jawahar Lal Vats And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sushil Shukla,Sunil Vashisth Counsel for Opposite Party :- Govt. Advocate,Brijesh Sahai,C.P. Upadhyaya,Santosh Tripathi,Siddharth Singhal,Swetashwa Agarwal,Vinay Arora Hon'ble Saurabh Srivastava,J.
1. Heard Sri Sushil Shukla, learned counsel for revisionist, Sri Arvind Kumar Srivastava and Sri Rajarshi Gupta assisted by Sri Pranshu Gupta, learned counsels on behalf of opposite party no. 2 as well as learned AGA for the State.
Prayer
2. The instant application has been preferred with a prayer to quash/stay the entire criminal proceeding of Criminal Case No. 677 of 2009 under Sections 211, 195, 389, 120-B IPC, PS Nauchandi, District Meerut (State Vs. Jawahar Lal Vats & other), pending currently in court of learned ACJM IVth, Meerut against the applicants, since continuation of it amounts to a clear abuse of the process of the court.
Brief Facts
3. It is the case of the applicants that on 30.3.2006 at about 10:00 AM, the son of opposite party no. 2 namely 'Sanjay & Ajay Bansal' along with one unidentified accused person had committed assault by firing upon the applicant no. 2 as a result of which he received serious firearm injuries on his chest. He was immediately taken to nearby 'Lokpriya Hospital' where at he was admitted at around 10:30 AM and subsequently operated upon by the doctors. applicant no. 1 i.e. father of the injured-applicant no. 2, since did not know them before as such he lodged FIR at 11:15 AM at PS Nauchandi in respect of aforesaid incident against 3 unknown accused persons. The said FIR was registered as Case Crime no. 147 of 2006 u/s 307 IPC and verbatim whereof is quoted here-under :-
"नकल तहरीर हिन्दी वादी सेवा में, श्रीमान थानाध्यक्ष थाना नौचन्दी, मेरठ।
महोदय, निवेदन है कि प्रार्थी सुबह लगभग 10.00 बजे अपने घर के बाहर सड़क पर बाहर जाने के लिए खड़ा था तथा अपने बेटे धनन्जय जो मन्दिर से आने वाला था का इन्तजार कर रहा था। तभी गली के मोड़ पर मेरा पुत्र स्कूटर से आया तभी तीन अज्ञात हमलावरो ने यह कहते हुये कि साला बहुत मुकदमे बाजी करता है अपने हाथो मे लिए कट्टो से मेरे पुत्र को जान से मारने की नियत से गोलिया मार दी हमलावरो को मै सामने आने पर पहचान सकता हूं मेरे शोर मचाने पर वहाँ काफी लोग आ गये तथा बदमाशो को ललकारने पर हमलावर भाग गये। कृपया मेरी रिपोर्ट लिखकर कानूनी कार्यवाही करने की कृपा करे। प्रार्थी sd/- श्री जवाहर लाल वत्स s/o स्व० श्री दुर्गा प्रसाद r/o 18/14 , राजेन्द्र नगर, PS नौचंदी, मेरठ दिनांक 30.3.06 नोट- मै c/c 1506 रनधीर सिंह प्रमाणित करता हूँ कि नकल तहरीर हिन्दी वादी थाना हाजा की चिक पुश्त पर शब्द व शब्द अंकित की गई।"
4. Subsequently, when on 10.04.2006 for the first time, the injured-applicant no. 2 was examined by the Investigating Officer (in short 'the IO') of the said case, he revealed the name of 'Sanjay & Ajay Bansal (i.e. son of opposite party no. 2) as the assailants who along with one unidentified accused person had assaulted him on the day of incident by firing upon him. It is thereafter that both of them became accused in the Case Crime No. 147 of 2006.
5. Both the accused took the plea of alibi before the IO and finally the IO submitted the final report no. 32 of 2006 on 20.10.2006 in the said case thereby exonerating the aforesaid accused persons from the case. When the said final report reached in the court of learned JM IIIrd, Meerut on 12.12.2006, a Criminal Misc. Case no. 1331/11 of 2006 in his court was registered for judicial disposal of said FR and learned Magistrate directed for issuance of notice to the applicant no. 2 for making protest.
6. Meanwhile, an order came to be passed on 16.03.2007 by a Division bench of this Court in a pending Criminal Misc. Writ Petition No. 13182 of 2006 which had been filed by the applicant no. 2 before for seeking direction to the local police for proper & effective investigation of Case Crime no. 147 of 2006 under Section 307 IPC PS Nauchandi, District Meerut. In the said order, this Court had directed the applicant no. 1 to approach the court of learned Magistrate for making protest against the submission of FR in his case.
7. Applicant no. 2 appeared and filed his protest petition along with his affidavit on 04.04.2007 against the submission of the FR in the said case and through the petition, it was submitted by the applicant no. 2 that the conclusion drawn by the IO of the said case in the FR was illegal and patently absurd inasmuch as he could not have accepted the plea of alibi for exonerating the accused persons which was the domain of judicial appreciation only after receiving legal evidence in trial and when statement under Section 161 Cr.P.C of applicant no. 2 was clearly revealing commission of offence under Section 307 IPC against those accused persons, therefore there was sufficient prosecution material to reject the FR and summon them to face prosecution before the court.
8. Thereafter, on 16.04.2007, learned Magistrate rejected the above said FR thereby summoning the accused persons to face prosecution before him. However, meanwhile, the accused persons had approached Hon'ble Supreme Court by filing a SLP No. 2364 of 2007 (which was later converted to regular 'Criminal Appeal No. 1453 of 2007') in challenge of the order dated 16.3.2007 passed by this Court on the writ petition of the applicant no. 1. The said SLP was admitted and later Hon'ble Supreme Court by its order & judgment dated 22.10.2007 set aside both the orders passed by this Court and and also the summoning order dated 16.4.2007 passed by the learned Magistrate. In fact, the operative portion of the order dated 16.03.2007 of this Court was taken to be objectionable by Hon'ble Supreme Court since in its view the same was likely to prevent the learned Magistrate to apply his independent judicial mind while deciding the Final Report submitted against the accused persons. Therefore, by upsetting the orders, the Hon'ble Supreme Court finally remanded the matter back to the learned Magistrate for deciding the Final Report in accordance with applicable law as interpreted and guided for him in the body of the judgment by Hon'ble Supreme Court.
9. On 04.11.2007, the applicant no. 1 himself filed certified copy of the above said order dated 22.10.2007 passed by Hon'ble Supreme Court before the learned Magistrate. As the territorial jurisdiction of the concerned Magistrate had changed, hence the Criminal Misc. Case No. 1331/11 of 2006 registered previously in the court of Ld JM IIIrd was allotted fresh No. as 'Criminal Misc. Case No. 3309/9 of 2007' in the court of Ld JM Ist, Meerut for disposal of FR case and protest petition filed by the applicant no. 1.
10. Learned counsel for the appellant submitted that while the judicial proceedings in respect of disposal of FR and protest petition thereon were going on in the court of learned Magistrate, the applicant no. 1 discovered that on his previous complaint against the Investigating Officer of the case for helping the accused persons in fabricating & supporting their plea of alibi, a departmental enquiry had been ordered and on 19.11.2007, the enquiry officer i.e. SP City Meerut had already submitted his enquiry report finding these Investigating Officers guilty in not properly investigating the case and had recommended departmental punitive action against them and also that in an another enquiry conducted by the 'Deputy CMO, Rampur' against the Medical Staff & Doctors of CHC, Milak, Rampur who had helped accused 'Sanjay Bansal' in fabricating his admission into said CHC on 29.03.2006 i.e. a day prior to date of incident, the said staff & doctor have been found to be guilty of fabricating the medical record in order to show the admission of accused. Therefore, the applicant no. 1 through his letter dated 28.01.2008 prayed before 'DIG, Meerut Range, Meerut' for recommending further investigating into the instant case by drawing his attention to aforesaid enquiry reports, which had strengthen his case against accused persons.
11. The IO who undertook further investigation concluded with the previous observations made in the case by different Investigating Officers that the accused persons were not present at the place of occurrence as their alibi was established and that they have been falsely implicated by the applicant no. 1. Besides aforesaid conclusions, the IO also forwarded and submitted his complaint dated 28.04.2008, in the court of learned Magistrate dealing with FR case, against the informant 'Jawahar Lal Vats' and his injured son Dhananjay seeking their prosecution under Section 211 IPC for allegedly filing false criminal case against the innocent accused persons namely 'Sanjay & Ajay Bansal'.
12. On the other hand, the opposite party no. 2 namely 'R.K. Gupta' himself on 28.08.2008 approached 'Secretary Home, UP Govt Lucknow' and filed before him his written complaint narrating therein that his sons namely 'Sanjay & Ajay Bansal' were falsely implicated by the applicants by lodging false FIR. However, since their acts also amount to an offence as defined under Sections 211, 195, 120-B IPC as such the local police be directed to lodge NCR in those sections against them and investigate the same after seeking formal judicial permission under Section 155 Cr.P.C.
13. The said complaint of R.K. Gupta reached later before SHO, PS Nauchandi through proper channel and whereafter on his direction, surprisingly and quite illegally, an FIR under Section 154 Cr.P.C on 20.09.2008 was registered giving rise to 'Case Crime no. 467 of 2008 under Sections 211, 195, 120-B IPC, PS Nauchandi, Meerut against the applicants.
14. The Investigating Officer who was entrusted with investigation of Case Crime no. 467 of 2008 noticed that the FIR of said case could not have been registered under Section 154 Cr.P.C as none of the aforesaid offence were cognizable resultantly the said IO on 24.09.2008 stopped the investigation by noticing the aforesaid discrepancy and observed that a formal judicial permission in terms of Section 155(2) Cr.P.C was needed to undertake any investigation in such cases.
15. Thereafter on 24.09.2008, R.K.Gupta, laid another application before SSP, Meerut praying therein that as his FIR has been wrongly registered for non-cognizable offences, which can only be investigated after seeking formal judicial permission in terms of Section 155(2) Cr.P.C and as such the local police be directed to approach the court of learned Magistrate for moving and seeking aforesaid permission so that his case can be investigated.
16. Learned counsel for applicants submitted that on the above said application dated 24.09.2008, the SHO of PS Nauchandi directed the IO namely 'SI Kamal Singh' to do needful yet the said IO did not moved any such application in the court of learned Magistrate for seeking formal judicial permission in terms of Section 155(2) Cr.P.C which he was sure was not likely to be granted as the learned Magistrate was already in the process of deciding judicially the FR submitted by the police, therefore, it appears that the said R.K.Gupta acting under some tacit understanding with the IO of the case, moved yet another application on 18.11.2008 before the SSP, Meerut with the allegations that the IO was not investigating his case properly. On the said application, the SSP, Meerut without ascertaining true facts of the case passed an order on 18.11.2008 itself directing SHO, PS Nauchandi to take stern steps against the accused of the case instituted by Mr. R.K.Gupta.
17. The investigation of the above said FIR lodged against the applicants continued and charge sheet no. 2 of 2009 dated 06.01.2009 was submitted in the court of learned ACJM Ist, Meerut for seeking their prosecution.
18. Learned counsel for the applicants submitted that the learned Magistrate quite illegally and ignoring the statutory bar as provided under Section 195(1)(b)(i) Cr.P.C took cognizance of the offences on the basis of the police charge sheet under Sections 211, 195, 389, 120-B IPC submitted against the applicants by his order dated 07.01.2009 thereby summoned them to face prosecution after registering against them formal proceeding of Criminal Case no. 677 of 2009 under Sections 211, 195, 389, 120-B IPC, PS Nauchandi, District Meerut (State Vs. Jawahar Lal Vats & other).
19. On the other hand, the proceedings regarding disposal of FR submitted in case instituted by the applicant no. 1 was still pending therefore, he approached this Court and filed 'Criminal Misc. 482-Application No. 648 of 2009' seeking direction for learned Magistrate to decide & dispose of the matter relating to protest petition filed against Final Report No. 32/06 dated 20.10.2006 pending before him expeditiously as the same was pending disposal even after the order of Hon'ble Supreme Court dated 22.10.2007 passed in the said case. Co-ordinate Bench of this Court vide order dated 23.01.2009, disposed of the said 482-Application of the applicant no.1 by directing the learned Magistrate to decide within two weeks the protest petition in relation to FR case.
20. Subsequently, even though Mr.R.K.Gupta, did not have any locus in the case pertaining to protest petition against the above said FR yet they filed an Impleadment Application No. 28576 of 2009 in the above said 'Criminal Misc. 482-Application No. 648 of 2009 (which was already decided on 23.01.2009 before this Court seeking modification of said order dated 23.01.2009. On his Impleadment Application, this Court passed an order on 05.02.2009 disallowing impleadment however it also directed the concerned Magistrate to club both the cases i.e. the case of protest petition pertaining to challenge the FR filed by the applicant no.1 and also the case under Section 211, 195, 389, 120-B IPC which was also pending in the same court.
21. Finally, learned Magistrate (i.e. ACJM IV th, Meerut) summoned the record of 'Criminal Case No. 677 of 2009 under Sections, 211, 195, 389, 120-B IPC also before him while deciding the proceedings related to disposal of FR submitted in Case Crime No. 147 of 2006 and protest petition thereon (i.e. Criminal Misc. Case No. 701 of 2008, which were renumbered in his court) and thereafter, the learned Magistrate by his order dated 11.02.2009 disagreed with the conclusions drawn by the police while submitting FR No. 32 of 2006 dated 20.10.2006 in connection with Case Crime no. 147/06 under Section 307 IPC and took cognizance of offence against the accused persons namely 'Sanjay & Ajay Bansal' by summoning them to face prosecution of said case in his court.
22. Meanwhile both the accused persons namely 'Sanjay & Ajay Bansal' approached this Court in challenge of the summoning order dated 11.02.2009 passed against them by learned Magistrate by filing 'Criminal Misc. 482-Application Nos. 4983 & 6068 of 2009' in which, this Court issued notices to the applicant no. 1 and as an interim measure provided that no coercive steps be taken against them.
23. On the other hand, the applicant also approached this Court to challenge the criminal proceedings initiated against them by the learned Magistrate on the criminal case lodged by Mr. R.K.Gupta by filing 'Criminal Misc. 482-Application Nos. 8882 of 2009' in which this Court also directed for not taking any coercive steps against them as an interim measure and all the 482-applications i.e. filed by accused persons and other filed by the applicants were directed to be clubbed together for final hearing.
24. Case diary of theinstant case further reveals that the above said application dated 18.11.2008 of the 'R.K.Gupta' was received by the IO who once again commenced illegally the investigation of the case and on CD no. 2 dated 18.11.2008 he noted down the contents of the said application and also recorded statement under Section 161 Cr.P.C of R.K.Gupta (opposite party no. 2).
25. Again on 30.11.2008, without there being any judicial permission under Section 155(2) Cr.P.C, the IO continued with his investigation and on that day vide CD no. 3 recorded the statement of one 'Sonu'.
26. Lastly on 03.12.2008 at CD No. 4, the IO of the case recorded statement under Section 161 Cr.P.C of one 'Arun Kumar' and therafter acting in collusion with opposite party no. 2 devised a plan in order to overcome the necessity of seeking any formal judicial permission in terms of Section 155(2) Cr.P.C to continue with his investigation and for that he added Section 389 IPC into Case Crime no. 467 of 2008 under Sections 211, 195, 120-B IPC by observing offence under that section was also appearing to have been committed in the case by the accused applicants.
27. By deliberate addition of offence defined under Section 389 IPC, which otherwise was also not being made out from the barest allegations made in the application dated 18.11.2008 submitted in the case by the opposite party no. 2, the investigation which was illegal & void ab-initio in absence of there being any formal judicial permission in terms of Section 155(2) Cr.P.C of any Magistrate could not be said to have been legalized by such addition. The entire exercise was directed towards resorting to devises in order to evade the need for taking such judicial permission in the case. The record reveals that between 10.12.2008 to 31.12.2008 between CD no. 5 to 9, the IO of the case continued with the investigation and further recorded statements of 'Sanjay & Ajay Bansal' (sons of opposite party no. 2) and of several witnesses namely Kuldeep Pawar, SI B.P.Singh, Sanjeev, Sewaram Sharma, Dr. Vinod, Vijaybhan and Mukesh Kumar in support of the allegations against the applicants.
28. Even under above narrated illegal investigation carried out by the IO, he quite arbitrarily arrested the applicants on 03.01.2009 whereafter they sought & granted bail 06.01.2009 on which day also the IO concluded the investigation of the case against them i.e. Case Crime no. 467 of 2008 under Sections 211, 195, 120-B IPC, and submitted charge sheet no. 2 of 2009 dated 06.01.2009 in the court of learned ACJM Ist, Meerut for seeking their prosecution in the aforesaid section of IPC besides Section 389 IPC also.
29. It is next submitted that from foregoing facts, it is more apparent that the applicants who themselves were victim of the offence committed by accused persons 'Sanjay & Ajay Bansal' were now made accused through a collective mischief of the police action at their behest and also at behest of their father i.e opposite party no. 2.
30. The impugned charge sheet came to be laid before the same learned Magistrate in whose court also the judicial proceedings in respect of disposal of FR submitted in case instituted by the applicant no. 1 against accused persons were pending. Even then, the learned Magistrate quite illegally and ignoring the statutory bar as provided under Section 195(1)(b)(i) Cr.P.C took cognizance of the offences on the basis of the said police charge sheet i.e. under Sections 211, 195, 389, 120-B IPC submitted against the applicants by his order dated 07.01.2009 thereby summoning them to face prosecution after registering against them formal impugned proceeding of 'Criminal Case No. 677 of 2009 under Sections 211, 195, 389, 120-B IPC, PS Nauchandi, District Meerut (State Vs. Jawahar Lal Vats & others).
31. On the other hand, the proceedings respecting disposal of FR submitted in the case instituted by the applicant no. 1 was still pending therefore, he approached this Court and filed Criminal Misc. 482-Application No. 648 of 2008 seeking direction for learned Magistrate (who was then JM IVth, Meerut) to decide & dispose of the matter relating to protest petition filed against Final Report No. 32/06 dated 20.10.2006 pending before him expeditiously as the same was pending disposal even after the order of Hon'ble Supreme Court dated 22.10.2007 passed in the said case. This Court finally by its order dated 23.01.2009 disposed of the said application u/s 482 of the opposite party no. 2 by directing the learned Magistrate to decide within two week the protest petition in relation to FR case.
32. Subsequently, even though opposite party no. 2-R.K.Gupta did not have ay locus in the case pertaining to protest to petition aginst the above said FR yet he filed an Impleadment Application No. 28576 of 2009 in the above said 'Criminal Misc. 482-Application No. 648 of 2009' decided on 23.01.2009 by this Court seeking modification of order. On his Impleadment Application, this Court passed an order on 05.02.2009 disallowing impleadment however it also directed the concerned Magistrate to club both the cases i.e. the case of protest petition pertaining to challenge the FR filed by the informant-opposite party no. 2 and also the case under Sections 211, 195, 389, 120-B IPC which was also pending in the same court.
33. Finally, the learned Magistrate i.e. ACJM IVth, Meerut summoned the record of Criminal Case No. 677 of 2009 under Sections 211, 195, 389, 120-B IPC also before him while deciding the proceedings related to disposal of FR submitted in the Case Crime No. 147 of 2006 under Section 307 IPC PS Nauchandi, District Meerut instituted on the FIR of applicant no. 1 and his protest petition thereon (i.e. Criminal Misc. Case No. 701 of 2008, which were renumbered in his court) and thereafter, the learned Magistrate by his order dated 11.02.2009 disagreed with the conclusions drawn by the police while submitting FR no. 32 of 2006 dated 20.10.2006 in connection with Case Crime No. 147/06 under Section 307 IPC, PS Nauchandi, Meerut and took cognizance of offence against the accused persons namely 'Sanjay & Ajay Bansal' by summoning them to face prosecution of said case in his court. While so concluding, the learned Magistrate had perused the entire prosecution material appended with the said FR and finding the statement of injured 'Dhananjay' & of informant (who are applicants herein) consistent with the prosecution case ignored the plea of alibi set up by the accused persons, which is a matter of defence for them to take & prove by leading evidence during their trial. The learned Magistrate has also guided himself properly in terms of order dated 22.10.2007 passed by Hon'ble Supreme Court in the same matter.
34. Therefore, the impugned proceedings seeking prosecution of applicants for offences under Sections 211, 195, 389, 120-B IPC have become abuse of process of Court.
Submissions on behalf of applicants
35. Learned counsel for the applicants challenged the impugned criminal proceedings on several grounds and raised argument that the said criminal proceedings are clearly barred in view of the provisions as giving under Section 195(1)(b)(i) Cr.P.C inasmuch as in absence of any complaint having been filed by the concerned court in terms of Section 340 Cr.P.C, the learned Magistrate ought not to have taken cognizance of the offences defined under Sections 211, 195, 120-B IPC on the basis of police chargesheet filed against the applicants in the instant case.
36. In so far as inclusion of Section 389 IPC in the instant case was concerned, the ingredients of such section were not even satisfied or disclosed from bare perusal of the FIR of the instant case and also on subsequent allegations made by the opposite party no. 2 on the basis of which the said section of IPC was quite mischievously added during the course of investigation, which ab-initio was being carried out illegally & without jurisdiction by the police in absence of any formal judicial permission in terms of Sections 155(2) Cr.P.C. More so, it has also been held in catena of judgment that -
14.... "the provisions of said Section 195(1)(b)(i) Cr.P.C cannot be evaded by devices or camouflages or by changing the garb or label of an offence though in truth & substance, the offence falls in category of section of IPC mentioned in Section 195 Cr.P.C. Merely by changing the garb or label of an offence, which is essentially an offence covered by the provisions of Section 195, the prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it."........AIR 1953 SC 293-Basir-ul-huq Vs. State of W.B. followed in AIR 1966 SC 523- Dr. S. Dutt Vs. State of UP and AIR 1966 SC 1775- Durga Charan Nayak Vs. State of Orissa.
37. More so, when the foundation of the impugned proceedings are based upon an FIR, which was registered illegally for non-cognizable offences defined under Sections 211, 195, 120-B IPC and against clear mandate of Section 154 Cr.P.C, the investigation commenced thereon or the chargesheet filed thereafter is clearly illegally and void ab-initio.
38. Even otherwise in given facts when the learned Magistrate by his order dated 11.02.2009 has already rejected the FR submitted against the accused persons namely 'Sanjay & Ajay Bansal' thereby accepting the protest petition of the applicant no. 1 and had summoned them to face prosecution in the case, which is instituted on the FIR lodged against them by the applicant no. 1, the continuation of impugned criminal proceedings against the applicants pertaining to accusations allegedly made by them for falsely implicating the aforesaid accused persons has now been rendered abuse of the process of the Court thereby warranting quashing by this Court.
Submission on behalf of State
39. Learned AGA rebutted the stand taken up by learned counsel for revisionist and submitted that after receiving the application form Senior Superintended of Police moved by opposite party no. 2-Sri R.K.Gupta, the Investigating Officer started the investigation of Crime no. 467 of 2008 because in the application moved to the Senior Superintendent of Police a serious allegations has also made that the Jawahar Lal Vats and Dhananjay Vats are illegally demanding Rs. 20 lakhs from him. It is to be submitted here that after receiving the complaint from the Senior Superintended of Police moved by complainant Sri R.K.Gupta, the same was copied down in C.D. Parcha no. 2 and thereafter, the Investigating Officer proceeded in the investigation because from the perusal of said complaint a cognizable offence was also made out.
40. On the basis of complaint made to Senior Superintended of Police by Sri R.K.Gupta the matter was investigated and evidence was collected and after a perusal of said evidence, Section 389 of IPC was also added in Crime no. 467 of 2008. It is also important to mention here that if any case of NCR subsequently it found that some cognizable offence has also been committed then there is no need of permission from the Magistrate under Section 155(2) Cr.P.C.
41. The matter was investigated thoroughly and fairly and after thorough investigation, the charge-sheet was submitted. It is also important to mention here that during course of investigation, the Investigating Officer collected the VCD from journalist Kuldeep Pawar in which Dhananjay Vats has admitted that he was not attacked by Sanjay Bansal and Ajay Bansal. It is also important to mention here that the said VCD and said camera was sent to CFSL, Chandigarh for examination, which was found true and untampered. Section 389 of IPC was added not only on the basis of statement of Sri R.K.Gupta but the same fact was also verified from the VCD.
42. The learned Magistrate has rightly taken the cognizance on basis of police report and there is no illegality or irregularity in taking the cognizance of learned Magistrate.
Submission on behalf of opposite party no. 2
43. Learned counsels for the opposite party nos. 2 put forward his arguments as under:
44. The conspectus of the matter is that it relates to false implication of Sanjay Bansal and Ajay Bansal (both sons of R.K. Gupta, Chairman of IAMR College affiliated to CCS University, Meerut) by the Revisionists in this matter (namely, Jawahar Lal Vats, Lecturer in NAS College, Meerut affiliated to CCS University, Meerut and his son Dhananjay Vats, who was terminated by the opposite parties from his service as Lecturer from their IAMR College in 2005, as his appointment required approval by Vice Chancellor).
45. Unfortunately, the applicant no. 2 was attacked by some unknown persons and accordingly a blind FIR was lodged by the applicant no. 1 on 30.03.2006 which was registered as Case Crime No. 147/2006 under Section 307 IPC at Police Station- Nauchandi, District-Meerut. According to the evidence collected in this matter, the applicant no. 2 was admitted in hospital and not unconscious and he did not know about the assailants. The statement of the applicant no. 1 was recorded on the same day supporting his blind FIR. On 10.04.2006, i.e. on the twelfth day of the incident, the applicant no. 2 named the son of opposite party no. 2 as assailants. On 14.04.2006, the applicant no. 1 also made a supplementary statement to support the false charge and thus conspired with applicant no. 2.
46. The Investigation Officer in Case Crime No. 147/2006 under Section 307 IPC submitted final report finding the name of opposite parties false and being named falsely with the intent to spoil the reputation of the Institution and for illegal gains. The cognizance was taken on the protest petition filed by the applicants. The applicants approached this Court in Criminal Misc. Application Nos. 4983/2009 and 6068/2009 and they were duly protected by the interim order dated 26.03.2009. In this situation, the Public Prosecutor made an application for withdrawal from this false prosecution, which was allowed by the competent court and the subject matter of challenge before this Court.
47. The State also instituted separate proceedings against the applicants which ultimately culminated into a charge sheet dated 06.01.2009 under Sections 195, 211, 120B and 389 of IPC on which cognizance was taken by the competent court, before the cognizance taken in Case Crime no. 147/2006, for false implication of Sanjay Bansal and Ajay Bansal (which is subject matter of instant application).
48. The instant application has been filed merely on the technical grounds only. The challenge is primarily made on the ground that the investigation is illegal, as an FIR was lodged illegally for non-cognizable offences, therefore the charge sheet filed in the instant matter is void. Section 389 IPC is not made out prima facie and it was added up mischievously during course of investigation and the criminal proceedings are barred in view of Sections 195(1)(b)(I) Cr.P.C.
49. At the outset, it is humbly submitted that to make out a cause of abuse of process, the applicants have made factual misrepresentation in para 20, 21 and 22 of the instant application. In the instant matter, there is clinching evidence collected by the Investigating Agency that applicant no. 2, falsely charged the sons of opposite party no. 2 as assailants knowing fully well that the same was false and applicant no. 1 conspired with him. The applicants also put the aforesaid party into fear of an accusation with a view to extort rupees 20 lacs. The premise of the challenge is based on the assertion of vague allegation that it appears that the opposite party no. 2 acting under tacit understanding with the IO of the case moved an application before SSP on 18.11.2008. The incident of 16.11.2008 is not even asserted to be incorrect by the applicants. It is humbly submitted that the same amounts to alleging personal mala fide at the part of investigating officer and the investigating officer is not even arrayed as a party in the instant application. It is also pertinent to mention here that the Investigating Agency had collected the evidence to the extent that the applicants had rivalry with some youths.
50. It is clear that there are two separate mutually exclusive independent cases viz. One arising out of Case Crime no. 147/2006 under Section 307 IPC instituted by the applicant no. 1 in which sons of opposite party no. 2 were falsely named as assailants, which ultimately resulted in discharge of sons of the opposite party no. 2 by the competent court by virtue of order dated 06.09.2011. The other one is Case Crime No. 467/2008 under Sections 211, 195, 389, 120-B IPC for falsely implicating the sons of the opposite party no. 2 in which cognizance was taken by the competent court, which is the subject matter of challenge in the instant Crl. Misc. Application.
51. In the instant matter a prompt FIR was lodged by the applicant no. 1 (Jawahar Lal Vats) against three unknown persons on 30.03.2006 (within 01:15 hrs of incident) which was registered as Case Crime no. 147/2006. The applicant no. 2 brought a false charge before police on 10.04.2006 and named the sons of the opposite party no. 2 (namely, Sanjay Bansal and Ajay Bansal) as assailants in the incident of 30.03.2006. The applicant no. 1 has also conspired with him. Police found the allegation of committing crime by the sons of opposite party no. 2 as false and submitted a final report on 20.10.2006 and concluded that false allegations were made for defaming the institution of opposite party no. 2 and to have illegal gains under a conspiracy by the applicants. This matter was further investigated by police on behest of applicants and the last investigating officer collected relevant material and reached to the conclusion that applicants had committed offences under Sections 211, 120-B IPC and instituted proceedings by filing a challani report under Sections 211, 120-B IPC in the court on 24.05.2008. (as a matter of fact, no cognizance was taken by the Magistrate on these proceedings). The opposite party no. 2 also lodged a report to investigate the offences committed by applicants so that complete evidence may be produced before the court and the applicant may be punished in accordance with law. The outcome of further investigation became the basis of this report. This non-cognizable report was mistakenly lodged as FIR of Case Crime no. 467/2008 and the mistake was rectified immediately at the behest of the opposite party no. 2 to make out a cause of abuse, the applicants have made factual misrepresentations in the instant application on this aspect.
52. In pursuance of conspiracy a distinct offence under Section 389 IPC was also committed by applicants on 16.11.2008 and at this juncture investigating officer of this case treated this case as cognizable on 18.11.2008 and commenced investigation in the pending lodged report of 20.09.2008 and finally preferred charge sheet on 06.01.2009, on which cognizance of the case was duly taken by the learned Magistrate in Case No. 677/2009 arising out of Case Crime No. 467/2008 under Section 211, 195, 389, 120-B IPC.
53. Learned counsel put forward his arguments regarding investigation as under:
(i) the Investigating Agency was within its jurisdiction to carry out investigation in the separate case lodged at the behest of opposite party no. 2 after submission of final report in Case Crime no. 147/2006 and can lay down charge sheet in the matter. This is a distinct and separate case, which has to be legally adjudicated on the basis of the evidence collected by the Investigating Officer of this case.
(ii) in the instant matter, except a vague allegation of tacit understanding of IO (without making him party), there is no challenge to the incident of 16.11.2008, qua offence under Section 389 IPC. Evidence collected in this regard i.e. the statement of opposite party no. 2 under Section 161 Cr.P.C, statement of independent witnesses Sonu and Arun Kumar under Section 161 Cr.P.C. The statements clearly make out a case under Section 389 IPC, a cognizable offence and police was within in its jurisdiction under Section 155(4) of Cr.P.C to investigate the matter as cognizable case by virtue of deeming fiction under Section 155(4). No permission of magistrate is required to convert the case into cognizable one and adding of Section 389 IPC. The opposite party no. 2 humbly place reliance on the judgment of this Court in case of Brijlal Bhar Vs. State of U.P. & Anr. 2006 Cr.L.J. 3334.
So far as the filing of charge sheet dated 06.01.2009, both for cognizable and non-cognizable offences is concerned, it is submitted that since the whole case (comprising non-cognizable and cognizable offences) was to be treated as cognizable, the police had to investigate the whole of the case and submit a charge sheet in respect of all the offences.
Factually, there is no challenge to offences made out under Sections 211 and 195 and 120-B of IPC. The evidence collected during investigation qua these offences is also not under challenge. The Investigating Officer also collected evidence of enmity of the applicants with some students.
(iii) Moreover, it is also humbly submitted regarding the submission of the applicants regarding the investigation and charge sheet being void due to initial irregularity committed by police for registration of the FIR No. 467/2008 under Section 154 of Cr.P.C that any illegality or legality in investigation does not takes away the jurisdiction of court to take cognizance. (reliance is placed on judgment of this Court in Dharampal & Ors. Vs. State of U.P. 2006 Cr.L.J. 1421, relying Hinduja's case 2003(6)SCC195, kindly see para 7-8 at page 12-13 of volume of compilation filed by the counsel of opposite parties).
54. With regard to bar of Section 195 Cr.P.C on cognizance of the case it is submitted as under:
(i) Factually, in the instant matter, the offence of Section 211 and 195 IPC relates to bring a false allegation and fabricating false evidence before police i.e. way back on 10.04.2006 and 14.04.2006. No offence is committed in or in relation to, any proceeding in court, which was actually pending.
The bar of Section 195 Cr.P.C does not applies to any future proceedings and offences were committed at a time, when they were not parties to any proceedings in court and outside the court. As a matter of fact, there was no proceeding of court existing in Case Crime No. 467/2009, which is a independent and separate case qua which offences have been committed.
To buttress the aforementioned submission, the opposite parties are placing reliance on the guiding principle laid down in Iqbal Singh Marwah Vs. Meenakshi Marwah 2005 (4) SCC 370. In the said judgment, the Constitution Bench of Hon'ble Supreme Court laid down the scope of Section 195 Cr.P.C and the old approach of wide interpretation is a bye gone while interpreting Section 195(b)(ii) Cr.P.C The true ration of the aforesaid decision is that the bar of Section 195 Cr.P.C is place and offence related i.e. when offences are committed outside the court, the bar does not applies, as there is nothing to do with the administration of public justice. The reasoning of the judgment and interpretation of Section 195 Cr.P.C is akin to make the criminal justice swift and sure and guilty should be punished. (Kindly refer to para 24 of the judgment at page 31 of volume of compilation filed by counsel for opposite parties).
The guiding principle and reasoning regarding the interpretation of Section 195 Cr.P.C applies squarely to the facts of instant case also.
(ii) The applicants have placed reliance on three judgments quoted at page 17 of the instant Crl. Misc. Application. The first judgments is AIR 1953 SC 355 Basir-ul-haq case. The dictum of the judgment is that provision of Section 195 Cr.P.C cannot be evaded by resorting to camouflages. It is submitted that camouflage is always a question of fact. In the present matter, the distinct offence under Section 389 IPC is not even disputed. Only objection taken by the applicants is that it is not made out prima facie.
The second judgement relied upon by the applicants is AIR 1966 SC 523 Dr. S.Dutt's case. In the aforementioned case, the offence was committed in court (evidence of expert during course of proceedings, a different shade of offence under Section 211 IPC) was in question, therefore this case does help applicants in any manner.
The third case relied upon by applicants is AIR 1966 SC 1775 Durga Charan Nayak case. This case relates to offences covered under Section 195(1)(a) Cr.P.C. The dictum of this judgment is that Section 195 Cr.P.C does not bar trial of accused for a distinct offence, infact this ruling helps us for alternative submission that the criminal proceedings are by no stretch of imagination, bad in law, for offences under Section 389, 120-B IPC, as they are distinct offences not covered under Section 195 Cr.P.C.
(iii) In the instant matter the applicants have raised new issues in their rejoinder affidavit. One, they have started making false allegations of forgery etc. pertaining to the manner of sending the VCD by the Investigating Officer. The have also filed an application under Section 340 Cr.P.C to take benefit in the instant matter. The expert opinion is not under challenge, which is a domain of admissible evidence in the matter. The credibility of any evidence could not be challenged in the instant proceedings. However, the opposite party no. 2 have duly replied, regarding this aspect to satisfy the conscience of this Court and also about his conduct regarding making false allegations even against judicial officers.
55. In the light of aforementioned submissions this Court may be pleased to dismiss the instant application u/s 482 Cr.P.C and further direct an expeditious trial of applicants for offences punishable with life.
Issue, Discussion and Conclusion
56. After having the rival submissions extended by learned counsel for parties, one thing is crystal clear that applicant is prejudiced with the order dated 07.01.2009 through which cognizance of offence has been taken up by learned court concerned and the same has been put under challenge through the instant application by way of narrating the facts related to the persisting criminal controversy between the parties but at the same time, it has to be examined only that whether the learned court concerned was justified while taking cognizance over the chargesheet submitted by the concerned Investigating Officer after conduction of detailed inquiry?
57. The facts and plea taken up by applicants while preferring the instant application U/S 482 Cr.P.C. are altogether available at the appropriate stage, while preferring the instant application, there is hardly any illegality indicated over the order passed by learned court concerned under Section 190 Cr.P.C. After receiving the chargesheet by the concerned Investigating Officer, the only aspect which has to be taken into consideration by learned court of Magistrate at the stage of 190 Cr.P.C., is to see whether prima facie offence is made out or not? Once, it has been determined by learned Magistrate that prima facie case is made out, the cognizance of offence has been taken and the same does not contained any illegality or perversity found in the order dated 07.01.2009. The same proposition has been pronounced by Hon'ble the Apex Court in the case of Asim Shariff vs. National Investigating Agency (2019) 7 SCC 147, wherein it has been held that after receiving chargesheet, the only thing has to be considered by learned Magistrate before passing order under Section 190 Cr.P.C., that prima facie whether any offence is made out or not?
58. Only at the stage of summoning the applicants in pursuance of Section 190 Cr.P.C., there is hardly any ground available before this Court for quashing the entire proceedings of Criminal Case No.677 of 2009, under Sections 211, 195, 389, 120-B IPC, rather all the grounds whatsoever has been taken up through the instant application, are altogether available before applicants for seeking discharge at appropriate stage.
59. In view of the aforesaid discussions, the instant application lacks merit and is hereby dismissed.
Order Date :- 25.10.2024 Shaswat/Vivek Kr.
(Saurabh Srivastava,J.)