Allahabad High Court
Bharatendu Pratap Singh vs State Of U.P. Thru. Its Prin. Secy. Home … on 29 January, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:6061 Reserved Judgment Reserved On :08.01.2025 Delivered On :29.01.2025 Court No. - 12 Case :- APPLICATION U/S 482 No. - 23 of 2025 Applicant :- Bharatendu Pratap Singh Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home Lko. And Another Counsel for Applicant :- Sudeep Kumar,Abhishek Singh Pawar,Avdhesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard Shri Sudeep Kumar and Shri Abhishek Singh Pawar, learned counsel for the applicant and Dr. V.K. Singh, learned Government Advocate and Shri Anurag Verma, learned A.G.A.-I, for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been filed for the following main reliefs :-
“Wherefore it is most respectfully prayed that after summoning the records of the Courts below, the judgment and order dated December 6, 2024, passed by the Additional District and Sessions Judge, Court No. 18, Lucknow dismissing the Revision preferred by the Petitioner against the rejection order passed by the learned Chief Judicial Magistrate and the order dated March 16, 2023, passed by the Chief Judicial Magistrate, Lucknow dismissing the discharge application of the Petitioner under Section 239 of the Code of Criminal Procedure, copies of which are contained in Annexure No.1 and Annexure No.2 to this Petition, may kindly be quashed and set aside.
It is further prayed that the criminal proceedings pending against the Petitioner may kindly be quashed and set aside and the Petitioner may kindly be discharged.”
3. The instant application under Section 482 Cr.P.C. read with Section 528 of Bhartiya Nagrik Suraksha Sahnita, 2023 (in short “BNSS”) has been filed by the applicant impeaching the order dated 16th March, 2023, passed by the Chief Judicial Magistrate, Lucknow (in short “Magistrate”), whereby the Magistrate has rejected the application of the applicant preferred under Section 239 Cr.P.C., seeking discharge, and also the order dated 6th December, 2024, passed by the Additional District and Session Judge, Court No.18, Lucknow (in short “Revisional Court”), whereby the Revisional Court has dismissed the revision filed by the applicant challenging the order dated 16th March, 2023.
4. The case of the prosecution as per F.I.R. lodged by opposite party No.2/Smt. Meenakshi Singh at Police Station Hazratganj, District Lucknow on 26.08.2010, in nutshell, is to the effect that false complaints have been made by using letter-pads of eminent persons with intention to cause grave injury to her and the persons, whose letter-pads were used, stated that these letters are forged.
5. The Investigating Officer (in short “I.O.”), thereafter submitted charge sheet on 08.11.2010 against the present applicant, whereupon the cognizance was taken by the concerned Magistrate and the applicant was summoned to face criminal proceedings pending as Criminal Case No.6113126/2010.
6. The aforesaid criminal proceedings pending before the Magistrate including summoning order and the charge sheet were challenged by the applicant by means of the Criminal Misc. Case No. 4621 of 2010 (Bharatendu Pratap Singh Vs. State of U.P. and another).
7. This court, having considered the facts of the case, particularly the observation of the IO that the investigation is still pending, vide order dated 11.04.2011, interfered in the summoning order dated 09.11.2010, passed by the Magistrate, whereby the cognizance was taken and the applicant was summoned to face criminal proceedings, and provided liberty to the Magistrate to pass an order afresh after submission of the complete charge sheet. The relevant portion of the judgment/order dated 11.04.2011 is extracted herein below :-
“After going through the provisions of Section 173 of the Code of Criminal Procedure, I find that the police is supposed to file a report after completion of investigation and no doubt further investigation as well as filing of supplementary charge sheet is permitted, but for the evidences collected during the course of further investigation. The intention and purpose of Section 173 of the Code is to complete the investigation for the evidences which are in the knowledge of Investigating Officer and file the charge sheet. The charge sheet itself discloses that the Investigating Officer has observed that still the investigation is in process and the evidences on certain points still have to be collected, which shall be completed expeditiously. The materials which are to be collected as evidences have also been indicated therein.
I would like to reproduce the relevant observations of the Investigating Officer as under:-
“Yadapi Abhi Kai Binduon par sakshya Sankalan evam Vivechana ki drshti se karyawahi shesh hai. Jise tatparta se purna kiya jayega. Jin vinduon par karyawai shesh hai, ish prakar hai:-
1. Vivechana Ke liye awashyak evam wanchaniya dastavejon ko mukhya Satarkata Adhikari (Ayakar Vibhag), Nai Dilli se prapta karna evam prapt abhilekhon ki sanniriksha kar aavashyak karyawahi kiya jana.
2. Manniya Mantri Shri Ved Ram Bhati ka kathan ankit karna.
3. Manniya Vidhan Parishad Sadasya Shri Ganesh Shanker Pandey ka kathan ankit kiya jana.
4. Abha Kala Chandra ke bare main Chanbeen Karna.
5. Sandigdha wa anya Vyaktiyon/Abhiyoukton ke finger print lekar parikshan karana.
6. Jawat Narendra urf Chhotu, R/o Bulandshahar ke sath Brijmohan ke pas jakar Manniya Vidhyak Sunder Singh ke letter pads le jane wale vyakti ka pata lagaya jana.
7. Company se CDRs ki pramanit pratiyan prapt karana shesh hai.”
The aforesaid observation establishes that the Investigating Officer was having knowledge of the evidences, but without completing the investigation over there, he filed the charge sheet, which can be said to be his hasty action.
The filing of the aforesaid incomplete charge sheet has been said to be under pressure of the husband of respondent No.8, who was posted as District Head of the Police Officers and was going to be posted outside on the same date, thus the charge sheet has been said to be tainted with malafide action of the Investigating Officer. However, since the concluding part of the charge sheet itself establishes that it is an incomplete charge sheet, in view of the facts and circumstances of the case, it is needless to discuss the allegation of malafide in the matter.
Indisputedly the proceeding is going on, which can, in light of the aforesaid facts, be termd as the investigation in continuation of the earlier investigation. Thus, it cannot be said to be further investigation. The preposition of law laid down by the courts, as has been discussed here-in-above, enunciates that the charge sheet was incomplete for the evidences, which were within the knowledge of the Investigating Officer, therefore, in light of the facts of the present case, I am of the view that since the charge sheet is incomplete charge sheet, it is not the stage for the learned Magistrate to take cognizance of offence on the basis of incomplete charge sheet, therefore, I hereby quash the order impugned dated 9th of November, 2010, passed in Case No.13126 of 2010, arising out of Criminal Case No.639 of 2010. However, since the investigation is still continuing on the evidences, which have been disclosed in the said incomplete charge sheet, I hereby observe that as soon as it is completed and police report is filed before the learned Chief Judicial Magistrate, he shall be at liberty to take cognizance of offence on the basis of police report.
With the aforesaid observations and directions the petition is partly allowed.”
8. After above indicated order, the I.O., upon completion of the investigation, submitted charge sheet No.317A, dated 26.05.2011, under Sections 420, 465, 467, 468, 471, 120-B I.P.C. against the applicant and one Ajit Singh.
9. The Magistrate thereafter took cognizance and summoned the applicant and co-accused vide order dated 24.08.2011.
10. Being aggrieved, the applicant approached this Court by means of an Application U/S 482/378/407 Cr.P.C. No.4103 of 2011, (Bharatendu Pratap Singh Vs. State of U.P. others).
11. This Court, vide order dated 23.04.2012, after considering various aspects of the case and submissions advanced by learned counsel for the parties, declined to interfere in the Charge Sheet No.317A dated 26.05.2011 and directed the applicant to appear before the court concerned through counsel and file personal bonds.
12. This court, while passing the judgment and order dated 23.04.2012, took note of the fact that further investigation is continuing at the behest of the applicant and in this regard observed that at this stage the court is not interfering with the right of the investigating agency to conduct further probe and liberty was also given to the applicant to prefer an application based upon the further investigation before the court concerned.
13. It would be apt to indicate at this stage that an application before the Police Officer was moved by the applicant with the prayer to direct the I.O. to further investigate the matter. On this application the DIG, Lucknow passed an order directing the Circle Officer, Hazratganj, Lucknow to look into the matter and do the needful in accordance with law. The relevant portion of case diary (CD) on record reads as under :-
“C.O. gtjrxat mijksDr rF;ksa dk voyksdu dj fof/k laer dk;Zokgh djsAa** mDr vkns’k HkkjrsUnw izrki flag ds izkFkZuk i= ij fnuakd 25-02-2012 dks gqvkA ”
14. Based upon the order dated 25.02.2012 of the DIG, Lucknow, the Circle Officer, Hazratganj, Lucknow directed the IO to prefer an application in terms of Section 173 (8) Cr.P.C. and thereafter an application was preferred on 29.03.2012 and on this application the Magistrate concerned, vide order dated 30.03.2012 permitted the I.O. to further investigate the matter, which is apparent from the CD No.25, annexed at page 147 to 167. The relevant portion of the same is extracted herein below :-
“Jheku~ th Fkkuk dk;kZy; ds izHkkjh SI fo’ks”k Js.kh Jh jke izdk’k us tks vfHkys[k foospuk gsrq eq> m0fu0 dks fn;s gS mudk voyksdu djus ij Jheku Mh0vkbZ0th0 y[kuÅ ls vknsf’kr C.O. gtjrxat mijksDr rF;ksa dk voyksdu dj fof/k laer dk;Zokgh djsaA** mDr vkns’k HkkjrsUnw izrki flag ds izkFkZuk i= ij fnuakd 25-2-2012 dks gqvkA Mh0vkbZ0th0 egksn; ds bl vkns’k ij rRdkyhu {ks=kf/kdkjh gtjrxat Jh fo’kky ik.Ms; us fnuakd 28-03-2012 Jh fot; izdk’k izHkkjh fujh{kd gtjrxat y[kuÅ us mDr vfHk vfxze foospuk 173¼8½ Cr.P.C. esa ekuuh; U;k;ky; ls vuqefr ysdj foospuk djsa dk vkns’k fn;kA izHkkjh fujh{kd egksn; ds vodk’k ij gksus ds dkj.k izHkkjh Fkkuk SI Jh fouksn dqekj flag us 29-3-2012 dks 173 ¼8½ Cr.P.C. vfxze foospuk dh vuqefr gsrq ekuuh; U;k;ky; lh0ts0,e0 y[kuÅ dks izkFkZuk i= fn;k ftlij fnukad 30-3-2012 dks ekuuh; U;k;ky; C.J.M. egksn; us ^izkFkZuk i= voyksfdr izHkkjh Fkkuk gtjrxat }kjk iz’uxr izdj.k esa u;s rFkk lkeus vkus dh ckr dgh tk jgh gS foospd ds fof/k vuqlkj vfxze foospuk dh vuqefr iznku dh tkrh gSA Sd viBuh; Stamp Chief Judical Magistrate rc rd Lucknow ds vkns’k ds i’pkr~ foospuk eq> SI dks lqiqnZ gq;h ekuuh; U;k;ky; ds vkns’k dh Nk;kizfr o nhxj dkxtkr o foospuk dk vkns’k dqy 43 odZ ”
15. In terms of the order dated 30th March, 2012, passed by the Magistrate concerned, the investigation was carried out and completed by one Mahmood Alam Khan, Inspector, Crime Branch, which appears from the copy of CD No.42 dated 06.08.2012 and copy of CD No.46 dated 18.08.2012, annexed as Annexure Nos. 15 and 16, respectively, to the present application.
16. From a perusal of above indicated two documents, i.e. copy of the CD No.42 and copy of the CD No. 46, it is apparent that the I.O. Mahmood Alam Khan exonerated the present applicant. According to the opinion of the I.O. Mahmood Alam Khan, in trial, the offence could not be proved.
17. At this stage, it is also relevant to indicate that for exonerating the accused/applicant, the I.O. Mahmood Alam Khan in the above indicated documents pointed out the irregularities committed by earlier I.O. K.N. Mishra including in relation to obtaining expert report from the Forensic Science Laboratory (in short “F.S.L. report”) in relation to the signatures of the present applicant. For exonerating the applicant, the I.O. Mahmood Alam Khan also did not obtain any expert opinion in this regard though ought to have been obtained. The relevant portion of the report is extracted herein below :-
“Hkkjr ljdkj ds lsUVy foftysUl deh’ku ,DV 2003 ds uksfVfQds’ku ua0&45 fn0 11 flrEcj 2003 ftldh izfr eq> foospd }kjk bUVjusV ls MkmuyksM dh x;h gS fd /kkjk&11 ds vuqlkj ^^dsUnzh; lrZdrk vk;ksx dh nhokuh izfdz;k lafgrk 1908 dh vf/kdkfjrk fdlh Hkh tkWp ds lUnHkZ esa izkIr gSA mlh ,DV dh /kkjk&12 ds vuqlkj /kkjk&193] 228 Hkk n fo ds lUnHkZ esa /kkjk&196 Hkk n fo dh Hkh izfØ;k djus ds fy;s og vf/kd`r gSA** Mkmu yksM fd;s x;s ,DV dh Nk;kizfr tks 12 odZ gS layXu jks0 [kkl dh tkrh gSA blls Li”V gS fd ekuuh; fo/kk;d Jh lqUnj flag ds ysVj iSM ds dwV jpuk ds laca/k esa okfnuh eqdnek Jherh ehuk{kh flag vFkok vU; xokg }kjk ifjokn na0iz0la0 dh /kkjk&195 ¼d½¼[k½ dh mi/kkjk ¼1] 2] 3½ esa of.kZr izfØ;k ds vuqlkj dsUnzh; lrdZrk vk;qDr ds le{k gh nk;j djuk pkfg, Fkk D;ksafd fof/kd :Ik ls laKku ysus dk vf/kdkj mlh vf/kdj.k dks curk gSA iwjd ipkZ la[;k&12 ds lkFk gefj’rk ,d ,l ,y fjiksVZ fnuakd 4-2-11 dk voyksdu djus ls Li”V gS fd ekuuh; fo/kk;d lqUnj flag ds ysVj iSM Øekad&4 ua0 001884 dks Q-1 izn’kZ ls rFkk S-1 lSEiy ls fpfUgr fd;k x;k gSA ysVj iSM Øekad 4 ua0&004883 dks Q-2 izn’kZ ls rFkk ysVj iSM Øekad 4 ua0&103108 dks Q-3 izn’kZ ls fookfnr izn’kZ ds :Ik esa fpfUgr fd;k x;k gSA iqu% S-1 ds fy;s dsUnzh; lrZdrk vk;qDr dk;kZy; ls izkIr Jh lqUnj flag dk i= fnuakd 4-9-2010 ftldk Øekad d&4 ua0&004883 gS ftl ij vk; dj funs’kky; ¼lrZdrk½ dh izkfIr dh eqgj 10 uoEcj 2010 yxh gq;h gS dks Q-4 ds :Ik esa izn’kZ Mkyk x;k gS A ftlk feyku S-1 izn’kZ ls fd;k x;k gS rFkk ;g fVIi.kh dh x;h gS fd ftlus S-1 fy[kkoV fy[kh gS mlus Q-4 dks ugha fy[kk gS rFkk Q-1 ,oa Q-3 fookfnr izys[kksa dh Nk;kizfr;kaW gS ftlesa ijh{k.k gsrq ewy vfHkys[kksa dks fHktokus dk vuqjks/k fd;k x;k gSA vc rd foospuk ls ;g Li”V gS fd bu ewy vfHkys[kksa dks fof/k foKku iz;ksx’kkyk ugha Hkstss x;s gSaA bl izdkj ewy vfHkys[kksa ls fo/kk;d Jh lqUnj flag ds uewuk gLrk{kjksa dk feyku djk;k gh ugh x;k gSA vr% fcuk feyku djk;s fof/kd :i ls vkjksih ch-ih- flag ds fo:) Ny fd;s tkus o dwV jpuk djus dk lk{; miyC/k ugha gksrkA blds vfrfjDr fo/kk;d lqUnj flag ds ysVj Øekad d&4 ua0 004884 tks fn0 4-9-2010 dks iz/kkuea=h Jh eueksgu flag Hkkjr ljdkj dks fy[kk x;k gS dh ikorh dsUnzh; lrdZrk vk;qDr ds dk;kZy; esa ugha gSA bl ij fof/k foKku iz;ksx’kkyk }kjk Q-1 izn’kZ Mkyk x;kA tc ;g i= dsUnzh; lrdZrk vk;qDr dk;kZy; ds vUrxZr tkWp dk fo”k; gh ugh gS rks bls foospuk dk fcUnq Hkh cuk;k tkuk vlaxr izrhr gksrk gS D;ksafd blh i= ds vk/kkj ij izFke lwpuk fjiksVZ ds ckn xokg czteksgu ,oa vU; ds c;kuksa dk vk/kkj cuk;k x;k gSA tc ;g i= dsUnzh; lrdZrk vk;qDr dk;kZy; esa f’kdk;r dk fcUnq ugh gS rks bls vijk/k l`tu dk vk/kkj cuk;k tkuk Hkh mfpr izrhr ugha gksrkA ;g Hkh mYys[k iwjd ipkZ la[;k&12 fn0 5-2-11 ds lkFk layXu ,Q ,l ,y fjiksVZ fnuakd&4-2-2011 ds lkFk layXu ekuuh; fo/kk;d lqUnj flag dk fMuk;y ysVj Øekad d&4 ua0&103 fn0 15-10-2010 ftl ij Q-3 izn’kZ Mkyk x;k gS ;g i= foospd ,oa ,Q ,l ,y dh Vhe dks dsUnzh; lrdZrk vk;qDr dk;kZy; ubZ fnYyh }kjk QksVksxzkQh gsrq miyC/k djk;s x;s ekuuh; mPp U;k;ky; fnYyh ds vkns’k ds Øe eas miyC/k djk;s x;s ekuuh; mPp U;k;ky; fnYyh ds vkns’k ds Øe esa miyC/k djk;s x;s vfHkys[kksa dh lwph esa vafdr ugha gSA bldk fooj.k iwjd ipkZ la[;k&25 fn0 15-4-2012 ds lkFk gefj’rk vfHkys[kksa esa miyC/k gSA blls Li”V gS fd ekuuh; fo/kk;d lqUnj flag dk dfFkr fMuk;y ysVj u rks lacaf/kr vf/kdkjh dks iagqpk vkSj u gh lacaf/kr tkWp vf/kdj.k dsUnzh; lrZdrk vk;ksx dks vc rd dh foospuk ls ;g Li”V gS fd Øekad la0&004883 ,oa 004884 ds vykok Hkh ekuuh; fo/kk;d lqUnj flag }kjk vU; ysVj iSMksa ijHkh okfnuh dh f’kdk;r dh x;h gSijUrq ekuuh; fo/kk;d th }kjk vius fMuk;y ysVj 15-10-2010 esa ;g mYys[k ugha fd;k gS fd muds fdl ysVj iSM ls lacaf/kr ;g fMuk;y ysVj gSA vc rd dh foospuk ls ekuuh; fo/kk;d th ds 5 f’kdk;rh i=ksa esa ls rhu i=ksa dk feyku gqvk ftl ij ekuuh; fo/kk;d lqUnj flag ds gLrk{kj ds uewus ls esy ugha [kk;sa tc fd vius c;ku esa o xokgku ds c;ku esa nks ysVj iSM tkus dh ckr dgh x;h gSA
eq> fujh{kd }kjk cksy &2 dj ipkZ m0 fu0 Jh iadt dqekj ik.Ms; ls fy[kok;k x;kA vkt dh dk;Zokgh dk ipkZ lsok esa izsf”kr gSA”
18. To dispute the observations/findings of earlier I.O. K.N. Mishra, for the purposes of filing of charge sheet No.317A dated 26.05.2011 against the applicant, in addition to the above, the I.O. Mahmood Alam Khan, in the subsequent CD No. 46 dated 18.08.2012, again pointed out the irregularities committed during investigation by I.O. K.N. Mishra relating to the phone calls and in this regard observed that FSL report was not taken by earlier I.O. K.N. Mishra and as such the prosecution would not be able to prove its case before the trial court. However, he also did not obtained the FSL report for coming to come to the conclusion as to whether any offence was committed by the applicant or not.
19. In the aforesaid background, the present application has been filed impeaching the impugned order(s), as indicated above.
20. Learned counsel for the applicant, in facts and circumstances indicated above, based upon the law propounded by the Hon’ble Apex Court in the case of Vinay Tyagi Vs. Irshad Ali (2013)5 SCC 462 and Vinubhai Haribhai Malaviya Vs. State of Gujarat (2019) 17 SCC 1 and Luckose Zachariah alias Zak Nedumchira Luke and others Vs. Joseph Joseph and others, 222 SCC Online SC 241, submitted that the Magistrate was under obligation to consider both the reports, i.e. the Police Report/Charge Sheet No.317A dated 26.05.2011 submitted by the earlier I.O. K.N. Mishra and also the report, particularly CD No.42 dated 06.08.2012 and CD No.46 dated 18.08.2012 while considering the application seeking discharge preferred by the applicant under Section 239 Cr.P.C. and upon perusal of the order impugned dated 16.03.2023 would indicate that the Magistrate has not considered both the reports and the Revisional Court has also failed to take note of both the reports as also the law on the issue that the Magistrate was under obligation to consider both the reports while passing the order on application seeking discharge. Relevant paragraphs of recent judgment on the issue involved in the instant case passed by the Hon’ble Apex Court in the case of Luckose Zachariah alias Zak Nedumchira Luke and others Vs. Joseph Joseph and others, 222 SCC Online SC 241, are reproduced herein under :-
“6. The first respondent at whose behest the FIR was registered challenged the order of the Magistrate before the Sessions Court, Alappuzha. Exercising the revisional jurisdiction, the Sessions Judge set aside the order of the Magistrate on 26 October 2019 and directed the Magistrate to take the case on file and proceed further in accordance with law. While doing so, the Sessions Judge relied on a judgment of a Single Judge of the High Court of Kerala in Joseph v. Antony Joseph. Aggrieved by the order of the Sessions Judge, the appellants moved the High Court under Section 482 of the Code of Criminal Procedure. The High Court by its impugned judgment dated 3 March 2021 dismissed the petition on the following grounds:
(i) The positive and negative reports submitted under the Sub-sections (2) and (8) of Section 173 respectively must be read conjointly to determine if there is prima facie ground for believing that the accused has committed the offence. The reports do not have a separate existence. This position is settled by the decision of the Supreme Court in Vinay Tyagi v. Irshad Ali;
(ii) There is no scope for filling a protest petition against a report under Section 173(2) or Section 173(8) of the CrPC. The protest petition and its dismissal for non-prosecution does not have any legal impact; and
(iii) The scope of a protest petition would arise only when both the reports that is, the final report under Section 173(2) CrPC and the supplementary report under Section 173(8) CrPC, are “negative reports”.
7. While entertaining the Special Leave Petition on 13 December 2021, the following order was passed by this Court, recording the submissions of the appellants:
“1 Mr. R Basant, Senior Counsel appearing on behalf of the petitioners, has, while placing reliance on the decision of this Court in Vinay Tyagi v. Irshad Alia alias Deepak, (2013) 5 SCC 762, (paragraphs 41 and 42), submitted that since a supplementary report under Section 173(8) of the Code of Criminal Procedure 1973 was presented before the Magistrate after further investigation, the Magistrate would be required to take into account both the report under Section 173(2) as well as the supplementary report and then determine as to whether there is any ground for proceeding. However, it has been submitted that on the basis of the judgment of the High Court which has been cited in the order of the Sessions Judge only the report under Section 173(2) would be considered while the supplementary report would be taken into account at the stage of the trial.
2 Issue notice, returnable on 18 February 2022.
3 Counter affidavit, if any, be filed within a period of four weeks from the date of service.
4 Pending further orders, there shall be a stay of further proceedings in CC 2177/2016 pending before the Judicial First Class Magistrate Court-I, Alappuzha.”
8. In pursuance of the order issuing notice, the respondents have appeared in these proceedings. Accordingly, we have heard Mr. R Basant, learned senior counsel appearing on behalf of the appellants with Mr. Raghenth Basant and Dr. S. Gopakumaran Nair, learned senior counsel for the first respondent with Mr. T G Narayanan Nair.
9. The initial report under Section 173(2) CrPC which was submitted before the competent court after investigation found that prima facie the appellants were involved in the commission of the offences alleged. The subsequent report under Section 173(8) however has come to the conclusion that the proceedings were liable to be dropped since prima facie no case involving the commission of the offences has been established.
10. In the judgment of this Court in Vinay Tyagi (supra) it has been held that a further investigation conducted under the orders of the court or by the police on its own accord would lead to the filing of a supplementary report. The supplementary report, the Court noted, would have to be dealt with “as part of the primary report” in view of the provisions of sub-Sections 3 to 6 of Section 173.
11. Section 173(8) specifically provides as follows:
“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
12. In terms of sub-Section 8 of Section 173, in the event of a further investigation, the report has to be forwarded to the Magistrate upon which, the provisions of sub-Sections (2) to (6) shall (as far as may be) apply in relation to such report or reports as they apply in relation to a report forwarded in sub-section (2). In this backdrop, while interpreting the above provisions, in Vinay Tyagi (supra) this Court held thus:
“42. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code.”
13. The decision in Vinay Tyagi (supra) was noticed together with other decisions of this Court in the judgment of a three-Judge Bench in Vinubhai Haribhai Malaviya v. State of Gujarat3. This Court held:
“42. There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC (Cri) 365], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603]. Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177 : (2017) 2 SCC (Cri) 331], Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri) 594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] also stand overruled.”
14. In the present case, the record before the Court indicates that upon the submission of the supplementary report, the JFCM Court – I, Alappuzha by an order dated 19 May 2018 dismissed the protest petition submitted by the first respondent for non-prosecution. On 30 May 2018, the JFCM proceeded to accept the supplementary report in terms of the following order:
“It is seen from the records that after further investigation, police has referred the charge against the accused. Notice was issued to Defacto Complainant and he filed C.M.P. 155/2018 against the refer charge. The same was dismissed on 19.05.2018 due to non prosecution. Hence, final report referring the charge as false is hereby accepted. Hence, the further proceedings are dropped.
Hence, the further proceedings in the case dropped.”
15. The Sessions Judge was justified in setting aside the order of the Magistrate for the simple reason that after the supplementary report submitted by the investigating officer, the Magistrate was duty bound in terms of the dictum in paragraph 42 of the decision in Vinay Tyagi (supra), as well as the subsequent three-Judge Bench decision in Vinubhai Haribhai Malaviya (supra) to consider both the original report and the supplementary report before determining the steps that have to be taken further in accordance with law. The Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence. The order of the Sessions Judge restoring the proceedings back to the Magistrate was correct to that extent. However, the Sessions Judge proceeded to rely upon the decision of a Single Judge of the Kerala High Court in Joseph (supra), where it was held that:
“7. […] When a positive report under Section 173(2) of Cr.P.C. is followed by a negative report under Section 173(8) Cr.P.C. and cognizance has been taken upon the former report, the magistrate shall proceed with the case ignoring the latter report. But the supplementary report and the papers connected therewith shall form part of the record of the case and can be used at the trial. What I should do is to dispose of the Crl.M.C. making this position clear.”
16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge of the Kerala High Court in Joseph (supra) which is contrary to the position set out in Vinay Tyagi. Hence, the JFCM – I Alappuzha shall reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi v. Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya v. State of Gujarat as noted above and in terms of the observations contained in the present judgment. The Magistrate shall take a considered decision expeditiously within a period of one month from the date of the present order.”
21. Learned counsel appearing on behalf of the State have opposed the present application. It is stated that the further investigation was carried out at the behest of the accused, which, according to the various pronouncements relating to further investigation/re-investigation was ought not to have been ordered.
22. Learned counsel for the State very fairly stated that in the instant case the Magistrate permitted the IO to conduct further investigation and the said fact was taken note by this Court and liberty to the applicant to prefer an application on the basis of the report submitted after further investigation was also given by this Court and as such the present case be considered/decided taking note of these peculiar facts of the case.
23. Further submission is that this Court, vide judgment dated 26.05.2011 declined to interfere in the charge sheet No.317A and permitted to continue with further investigation and in this view of the matter the principle as laid down by the Hon’ble Apex Court in the case of Vinay Tyagi Vs. Irshad Ali, (2013)5 SCC 462 and subsequent judgments including Luckose Zachariah alias Zak Nedumchira Luke (supra) would not apply in the instant case.
24. It is also submitted that from the facts of the judgment referred by the learned counsel for the applicant it is apparent that in the said case before taking cognizance, two reports were submitted in terms of Section 173 (8) Cr.P.C. and in the instant case, on the first report i.e. Charge Sheet No.317A dated 26.05.2011, the trial court took cognizance and summoned the accused vide order dated 24.08.2011 and subsequently vide order dated 30.03.2012 permitted to continue with the further investigation, which was carried out by I.O. Mahmood Alam Khan and not by earlier I.O. K.N. Mishra.
25. It is also submitted that the purpose of further investigation is to collect the evidence and based upon the same file a report/charge sheet. In the instant case, the I.O. Mahmood Alam Khan has not obtained expert report (s), though, according to him were required and ought to have been obtained by the earlier I.O. K.N. Mishra, and without such evidence the I.O. Mahmood Alam Khan submitted his report exonerating the applicant. From the report of I.O. Mahmood Alam Khan it is apparent that he only pointed out the irregularity committed by earlier I.O. K.N. Mishra.
26. It is also submitted that at the stage of discharge, according to the various pronouncements, the mini trial is not permissible and further, the reasons, being heart beat of the order, are required to be indicated and from a perusal of the impugned order(s) dated 16.03.2023 and 26.12.2024 passed by the Magistrate and Revisional Court it is apparent that the same have been passed after taking note of the facts of the case, in brief, including the fact that earlier cognizance order based upon the Charge Sheet No.317A has been affirmed by this Court and also the law related to dealing with an application seeking discharge, according to which mini trial at this stage is not permissible.
27. Learned counsel for the State also submitted that if this Court is of the view that sufficient reasons have not been recorded by the Magistrate in that eventuality, this Court can take notice of the facts of the case, particularly the fact that according to earlier charge sheet filed by I.O. K.N. Mishra the accused/applicant has committed the crime and the subsequent report(s) exonerating the accused/applicant filed by subsequent I.O. Mahmood Alam Khan was filed without collecting evidence, including the F.S.L. report(s) as also the call detail reports, in absence of which he observed that on the basis of evidence available with the Charge Sheet No.317A dated 26.05.2011 filed by I.O. K.N. Mishra the case of the prosecution could not be proved.
28. It has also been submitted that prima facie it appears that the report submitted by the I.O. Mahmood Alam Khan, i.e. CD No.42 dated 06.08.2012 and CD No.46 dated 16.08.2012 are collusive in nature. In this view of the matter no interference in the impugned orders is required and the instant application is liable to be dismissed.
29. Considered the aforesaid and perused the record.
30. In the instant case the facts related to two police report(s) are to be considered. These report(s) have been filed by I.O. K.N. Mishra and I.O. Mahmood Alam Khan, respectively.
31. The police report/Charge Sheet No.317A dated 26.05.2011 was filed by I.O. K.N. Mishra. According to the same the I.O. K.N. Mishra, on the basis of material/evidence collected during investigation, was of the opinion that the accused-applicant has committed the crime.
32. Taking note of the material/evidence available on record the Magistrate took cognizance and summoned the accused-applicant vide order dated 08.08.2011.
33. The accused-applicant thereafter approached this Court by means of Application U/S 482 No.482/378/407 CrPC No.4103 of 2011. In this petition/application the summoning order dated 08.08.2011 and Charge Sheet No. 317A dated 26.05.2011 were challenged.
34. This Court vide order dated 23.04.2012 declined to interfere in the summoning order as also the Charge Sheet No.317A dated 26.05.2011. Thus, it can be inferred that this Court while passing the order dated 23.04.2012, after considering the Charge Sheet No.317A dated 26.05.2011 including the material/evidence collected during investigation by I.O. K.N. Mishra, prima facie, was of the view that offence against the accused-applicant is made out. The relevant portion of the order dated 23.04.2012 reads as under :-
“There is a difference, earlier I.O. had himself mentioned that investigation was incomplete in respect of certain points, which persuaded this Court to pass order quashing cognizance. However, now situation is different. I.O. Sri K.N. Mishra says investigation was complete and nothing further was to be done. It is the accused petitioner who has got the order of further investigation from authorities and it is on his application that I.O. proceeded under Section 173(8) Cr.P.C. Neither C.J.M. had found investigation incomplete nor this Court is recording any such finding. At the most Court is not interfering with the right of Investigating Agency to conduct further probe.
Since cognizance has been taken after considering the material on record, this Court does not find this case a rarest of rare case for interference under Section 482 Cr.P.C., particularly, in view of the fact that further investigation under Section 173(8) Cr.P.C. is already going on.
If new material is brought on record as a result of further investigation, it will be open to the petitioner to move the court of C.J.M. for appropriate order.
Petitioner placed before this Court the orders passed in similar matters by Hon’ble A.K.Tripathi, J. in Criminal Misc. Case No. 3062 of 2011(Dr. Ramesh Verma Vs. State of U.P. and another).
After considering the rival submissions, issues involved in the case and material collected, this Court is of the view that in the peculiar facts and circumstances of the case, petitioner be directed to appear before the court below through counsel within two weeks from today, who will also file personal bonds before the court concerned to appear whenever court requires him. Ordered accordingly.
Till then, no coercive measure shall be taken against the petitioner.
Chief Judicial Magistrate is at liberty to pass order regarding exemption/personal appearance according to law. If any objection/application is filed on the basis of fresh material, same will also be decided by the court concerned in accordance with law.
It is clarified that this Court does not intend to stay or regulate the proceedings which are pending before the C.J.M. and it is for the C.J.M. to proceed in accordance with law in the matter.
Subject to above, this petition stands finally disposed of.”
35. The order dated 23.04.2012, referred above, indicates that liberty was given by this Court to the accused/applicant to move the Court of C.J.M. for appropriate orders if new material is brought on record as a result of further investigation. In other words the liberty was given to the accused/applicant to prefer an application for appropriate orders if new evidence is brought on record along with police report after completion of further investigation.
36. It would be apt to indicate at this stage at the cost of repetition that Charge Sheet No.317A dated 26.05.2011, affirmed by this Court vide order dated 23.04.2012, was filed by I.O. K.N. Mishra and thereafter I.O. Mahmood Alam Khan conducted further investigation, filed CD No.42 dated 06.08.2012 and CD No.46 dated 18.08.2012 I.O. Mahmood Alam Khan did not collect evidence such as F.S.L. report, Call Detail report etc., which according to him were required, and without collecting such evidence only pointed out irregularities committed by earlier I.O. K.N. Mishra in conducting the investigation and only on the basis of irregularities pointed out exonerated the accused/applicant.
37. Needless to say that irregularity or illegality committed, during the investigation by the I.O. concerned is not always fatal to the story of the prosecution as has been held by the Hon’ble Supreme Court in various pronouncements.
38. In the case of Hema Vs. State, thr. Inspector of Police, Madras, reported in MANU/SC/0017/2013 :(2013) 10 SCC 192, the Hon’ble Apex Court in paragraphs 10 and 12 has held as under :-
“10. It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of T.N. MANU/SC/0655/2010 : 2010 (9) SCC 567, the following discussion and conclusions are relevant which are as follows :
“55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”
11. In Dayal Singh v. State of Uttaranchal, MANU/SC/0622/2012 :2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), this Court held thus :
“18….. Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground.”
16. In Gajoo v. State of Uttarakhand, MANU/SC/0747/2012 : 2012 (9) SCC 532, while reiterating the same principle again, this Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court. Since, the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases :
“20.In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under : (SCC pp. 280-83, paras 27-36)
’27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held : (SCC p. 657, para 5)
5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that : (SCC p. 398, para 42)
“42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.”
(Emphasis in original)
30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under : (SCC pp. 777-78, para 6)
“6…. 35…. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice–often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.’ (Zahira Habibullah Sheikh (5) case, SCC p. 395, para 35)”
32. In State of Karnataka v. K. Yarappa Reddy this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows : (SCC p. 720)
“19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.”
33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that : (Ram Bali case 15, SCC p. 604, para 12)
“12…. In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.”
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a “fair trial”, the court should leave no stone unturned to do justice and protect the interest of the society as well.
35. This brings us to an ancillary issue as to how the court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, the Court, while dealing with the discrepancies between ocular and medical evidence, held : (SCC p. 159, para 8)
“8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.”
36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
34. … The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but that of the court.”
39. In the aforesaid background of the case validity of the impugned order(s) has to be tested.
40. The relevant portion of the order dated 16.02.2023 reads as under:-
“इसके अतिरिक्त यह भी उल्लेखनीय है कि विवेचक द्वारा पूर्व में प्रस्तुत आरोप पत्र संख्या- 317ए/2010 पर न्यायालय द्वारा संज्ञान लिया जा चुका है और उक्त संज्ञान आदेश को माननीय उच्च न्यायालय द्वारा पुष्ट किया जा चुका है। धारा – 173 (8) दं०प्र०सं० के अंतर्गत अग्रिम विवेचना अभियुक्त द्वारा संबंधित प्राधिकारी से आदेश प्राप्त कर करवायी गयी है। इस न्यायालय द्वारा पूर्व में प्रेषित आख्या अंतर्गत धारा – 173 (2) दं०प्र०सं० पर संज्ञान लिया जा चुका है। धारा – 173 (8) दं०प्र०सं० के अंतर्गत सम्पादित अग्रिम विवेचना में ऐसा कोई मौखिक अथवा अभिलेखीय साक्ष्य संकलित नहीं किया है, जो यदि उसे धारा – 173 (2) दं०प्र०सं० के अंतर्गत प्रेषित आख्या के साथ पढ़ा जाये तो वह उसे खण्डित कर दे। उन्मोचन प्रार्थना पत्र के निस्तारण के प्रक्रम पर प्रकरण में मिनी ट्रायल नहीं किया जा सकता है। उन्मोचन प्रार्थना पत्र में अभियुक्तगण द्वारा उठाये गये अन्य बिन्दुओं की वैधता सम्यक् साक्ष्योपरान्त ही निर्धारित की जा सकती है।
उपरोक्त विश्लेषण की समग्रता को दृष्टिगत रखते हुए न्यायालय का यह निष्कर्ष है कि अभियुक्त भारतेन्दु प्रताप सिंह द्वारा प्रस्तुत उन्मोचन प्रार्थना पत्र दिनांकित 12.03.2012 एवं अभियुक्त अजीत सिंह द्वारा प्रस्तुत उन्मोचन प्रार्थना पत्र दिनांकित 03.07.2018 स्वीकार किये जाने योग्य नहीं है।”
41. The relevant portion of the order dated 06.12.2024 reads as under :-
“8 धारा 173 (8) दं०प्र०सं० के पूरक पर्चा सं०-35 के अवलोकन से विदित होता है कि उक्त पर्चे में विवेचक द्वारा यह अंकित किया गया है कि वादिनी ने अपने बयान में किसी भी मोबाइल नम्बर का उल्लेख नहीं किया था तब पूर्व विवेचक द्वारा किन आधारों पर समानांतर श्रवण के लिए सर्विलांस प्रभारी से मोबाइल नम्बर लिये गये। एस०सी०डी० 42 के अनुसार बी०पी० सिंह ने यदि श्री सुन्दर सिंह के फर्जी हस्ताक्षर बनाये थे, तो बी०पी० सिंह से नमूना हस्ताक्षर लेकर विवादित हस्ताक्षर की मिलान कराया जाना चाहिए था। विवेचक के अनुसार केन्द्रीय सतर्कता आयुक्त नई दिल्ली के यहाँ प्रारम्भ हुई विधिक कार्यवाही को प्रभावित करने की मंशा की संभावना से भी इंकार नहीं किया जा सकता। विधायक सुन्दर सिंह के लेटर क्रमांक का चार नम्बर 004884 जो दिनांक 04.09.2010 को प्रधानमंत्री श्री मनमोहन सिंह A भारत सरकार को लिखा गया था। पावती केन्द्रीय सतर्कता आयुक्त के कार्यालय में नहीं है। विधायक जी द्वारा अपने डेनायल लेटर 15.02.2010 में यह उल्लेख नहीं किया गया है कि उनके किस लेटर पैड से सम्बंधित यह डेनायल लेटर है। एस०सी०डी 46 में अभियुक्त भारतेन्दु प्रताप सिंह द्वारा अपने बयान में मोबाइल धारक 9911456547 अजीत सिंह के बयान की लोकेशन विवेचक द्वारा अपनी अभियोग दैनीकरण सं०-25A दिनांक 01.11.2010 में दिनांक 1306.2010 को बुलंदशहर में होनां प्रमाणित किया है। इस प्रकार स्पष्ट है कि विधायक श्री सुन्दर सिंह का प्रपत्र दिनांक 12.06.2010 को अजीत सिंह बुलंदशहर जाकर प्राप्त नहीं किया गया। विवेचक द्वारा यह भी अंकित किया गया है कि यह आश्चर्यजनक है कि बिना वादिनी का बयान लिये अथवा अन्य सुसंगत तथ्यों से मिलान हुए बिना मोबाइल नम्बर को विवेचक द्वारा डाइवर्जन में कैसे ले लिया गया, इससे विवेचना की सूचिता पर प्रश्न चिन्ह पैदा होता है।
9. इस प्रकार माननीय उच्च न्यायालय द्वारा इंनित 07 कमियों के प्रकाश सी० जे०एम० की निगरानी में हुई विवेचनोपरान्त रिपोर्ट अंतर्गत धारा 173 (2) सी०आर०पी०सी० दाखिल की गयी थी। सभी पर्चो के अवलोकन से स्पष्ट है कि विवेचक द्वारा अग्रेतर विवेचना में कोई नया साक्ष्य संकलित नहीं किया गया है। जब कि विवेचक के पास यह अवसर था कि यदि पूर्व विवेचना में विवेचक के अनुसार कोई त्रुटि वा असंगतता पायी गयी, तो उस संदर्भ में विवेचना के दौरान अनुसंधान कर सकता था जबकि अग्रेतर विवेचना में विवेचक द्वारा न ही कोई नया साक्ष्य एकत्र किया गया है और न ही इस संदर्भ में कोई प्रयास किया गया है, जिससे पूर्व विवेचना में लिये गये साक्ष्य असफल हो जाये। बल्कि पूर्व विवेचक द्वारा की गयी विवेचन्न कर्ती विश्लेषण करते हुए अंतिम आख्या प्रेषित की गयी है। उक्त सभी आपत्तियों साक्ष्य का विषय है।
10. यह उल्लेखनीय है कि उन्मोचन के संदर्भ में प्रथम दृष्टया साक्ष्य ही देखा जाना होता है। जिसके सदर्भ में माननीय उच्च न्यायालय विभिन्न निर्णय पारित किये है।
पलविन्दर सिंह बनाम बलविन्दर सिंह, 2009 (3) एस०सी०सी० 850 में माननीय न्यायालय ने यह अभिनिर्धारित किया है कि पुख्ता सन्देह के आधार पर भी आरोप तय किये जा सकते हैं। इस स्तर पर सबूतों की जांच और मूल्याकन नहीं किया जाना चाहिये।
शोराज सिंह अहलावत बनाम स्टेट आंफ उत्तर प्रदेश ए०आई०आर० 2013 एस०सी० 52 में माननीय उच्चतम न्यायालय द्वारा यह अवधारित किया गया है कि यदि पत्रावली पर उपलब्ध अभिलेख अथवा सामग्री से यह प्रकट होता है कि अभियुक्त द्वारा कोई अपराध कारित किया गया है, चाहे वह कितना ही सन्देहास्पद क्यों न हो, अभियुक्त को उन्मोचित नहीं किया जाना चाहिये।
माननीय सर्वोच्च न्यायालय द्वारा तमिलनाडू राज्य बनाम जयललिता, ए आई आर 2000 सुप्रीम कोर्ट, 1589 एवं दिल्ली राज्य बनाम ज्ञान देवी, ए आई आर 2001 सुप्रीम कोर्ट 40 में यह अभिमत प्रकट किया गया है कि आरोप विरचना के स्तर पर केवल प्रथम दृष्टया ही साक्ष्य का अवलोकन किया जाएगा। साक्ष्य का सम्पूर्ण विश्लेषण आरोप विरचना के स्तर पर अपेक्षित नहीं है। प्रार्थी / अभियुक्त द्वारा प्रस्तुत साक्ष्य को इस स्तर पर विचार में नहीं लिया जा सकता।
उपरोक्त विवेचन से स्पष्ट है कि केस डायरी में प्रार्थी/अभियुक्त के विरुद्ध प्रथम पर्याप्त साक्ष्य है और ठोस सन्देह (Strong suspicion)। के आधार पर भी आरोप निर्मित किए जाने को माननीय सर्वोच्च न्यायालय द्वारा लियाकत बनाम उ० प्र० राज्य 2008 (62) ए सी सी 33 (इलाहाबाद) उचित ठहराया गया है।
11. उपरोक्त विधि व्यवस्थाओं एवं विश्लेषण के प्रकाश में आलोच्यादेश दिनांकित 16.03.2023 के अवलोकन से प्रकट है कि माननीय उद्यतम न्यायालय की विधि व्यवस्था के प्रकाश में विद्वान विचारण न्यायालय द्वारा यह पाया गया कि धारा 173 (8) सी०आर०पी०सी० के अंतर्गत सम्पादित अग्रिम विवेचना में ऐसा कोई मौखिक अथवा अभिलेखित साक्ष्य संकलित नहीं किया गया है, जो धारा 173 (2) सी०आर०पी०सी० के अंतर्गत प्रेषित आख्या को खण्डित कर दे तथा इस स्तर पर मिनी ट्रायल आपेक्षित न होने के कारण प्रार्थना-पत्र निरस्त किया गया था। उक्त निष्कर्ष विद्वान अवर न्यायालय द्वारा पत्रावली पर उपलब्ध समस्त तथ्यों एवं प्रपत्रों का सम्यक अवलोकन करके विचि सम्मत ढंग से अपने में निहित क्षेत्राधिकार का सम्यक प्रयोग करते हुए प्रश्नगत आदेश दिनांकित 16.03.2023 पारित किया गया है, जिसमे किसी प्रकार की कोई अनियमितता व अवैधानिकता नहीं है। इसलिये न्यायालय की राय में विद्वान अवर न्यायालय द्वारा पारित आलोच्यादेश दिनांकित 16.03.2023 में इस न्यायालय द्वारा हस्तक्षेप किया जाना विधिक रूप से अपेक्षित नहीं है।
उपरोक्त विवेचन के आधार पर विद्वान अवर न्यायालय द्वारा पारित प्रश्गनत आदेश दिनांकित 16.03.2023 पुष्ट किये जाने योग्य है, तद्नुसार दाण्डिक निगरानी निरस्त किये जाने योग्य है।”
42. Upon due consideration of aforesaid, this Court finds that in the impugned orders, based upon the plea raised by the learned counsel for the applicant, no interference is required by this Court. It is for the following reasons :-
(i) The Magistrate as also the Revisional Court while passing the impugned order(s) dated 16.03.2023 and 06.12.2024, respectively, considered both the report(s), i.e. the report/charge-sheet No.317A, dated 26.05.2011, affirmed by this Court in the order dated 23.04.2012 submitted by I.O. K.N. Mishra, and CD No.42 dated 06.08.2012 and CD No.46 dated 16.08.2012 submitted by I.O. Mahmood Alam Khan. Thus, to the view of this Court, the principles settled by the Hon’ble Apex Court on the subject have been followed by the Magistrate as also by the Revisional Court
(ii) (a) The purpose of further investigation is to collect evidence. In the instant case the I.O. Mahmood Alam Khan submitted its report including CD No.42 dated 06.08.2012 and CD No. 46 dated 16.08.2012 and with his report he has not submitted any evidence, oral/documentary, based upon which accused/applicant can be discharged after observing that he has not committed any crime.
(ii)(b) According to the report including CD No.42 dated 06.08.2012 and CD No.46 dated 16.08.2012 submitted by I.O. Mahmood Alam Khan, I.O. K.N. Mishra committed irregularity in investigation and it would be difficult to prove the case against the accused/applicant during trial. The law says that based upon the defect in investigation an accused can not be acquitted.
(ii)(c) Thus, in view of aforesaid, no error has been committed by Magistrate as also by the Revisional Court in not discharging the accused/applicant on the basis of report submitted by I.O. Mahmood Alam Khan.
43. For the reasons aforesaid, the instant application is hereby dismissed. Cost made easy.
Order Date :- 29.1.2025
ML/-
