Vijay Kumar Tripathi v. Himanshu Kumar), under sections
Case Details
1 Neutral Citation No. - 2024:AHC:141132 Reserved on: 09.07.2024 Delivered on: 31.08.2024 Court No. - 77 Case :- APPLICATION U/S 482 No. - 2289 of 2024 Applicant :- Himanshu Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raghav Dev Garg,Sr. Advocate Counsel for Opposite Party :- G.A. Connected with Case :- APPLICATION U/S 482 No. - 5649 of 2024 Applicant :- State of U.P. Opposite Party :- Himanshu Kumar And Another Counsel for Applicant :- Jai Krishna Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Raghav Dev Garg along with Mr. S.S. Sisodia, the learned counsel for applicant, Mr. P.C. Srivastava, the learned Additional Advocate General assisted by Mr. A.K. Sand, the learned Government Advocate along with Mr. J.K. Upadhyay, the learned A.G.A-Ist alongwith Mr. Prashant Kumar the learned A.G.A. for State and Vice-Versa. 2. Perused the record. 3. These applications under sections 482 Cr.P.C. have been filed challenging the order dated 6.1.2024, passed by Additional Sessions 2 Judge/Special Judge, Prevention of Corruption Act, Meerut in final report No. 04/539/2023 (Vijay Kumar Tripathi Vs. Himanshu Kumar), under sections 8/12 P.C. Act and Section 120 B IPC, Police Station- Meerut, Sector (Vigilance Establishment), District- Meerut whereby Court below in exercise of it's jurisdiction under section 190(1)(b) Cr.P.C. has rejected the Police Report dated 11.4.2023, and directed for further investigation of the crime in question. 4. Record shows that upon direction issued by State Government, an open enquiry was conducted by U.P. Vigilance Establishment and thereafter U.P. Vigilance Establishment, submitted its report dated 9.9.2020 to the State Government. It appears that upon receipt of aforesaid report dated 9.9.2020, the State Government upon consideration of the same accepted the said report and consequently directed that an F.I.R. be lodged against applicant and others under the relevant provisions. 5. In view of above, a letter dated 17.9.2020 was issued by State Government (Vigilance Anubhag-3), whereby a direction was issued that an F.I.R. be lodged. In compliance of above letter dated 17.9.2020 issued by State Government, an F.I.R. dated 19.9.2020 came to be lodged by Inspector Vijay Kumar Tripathi and was registered as Case Crime No. 002 of 2020, under sections 8 and 12 of P.C. Act and Section 120-B IPC. In the aforesaid F.I.R. four persons namely, Himanshu Kumar (I.P.S), Chandan Rai, Atul Kumar Shukla and Swapnil Rai have been nominated as named accused. 6. After registration of aforesaid F.I.R, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, he came to the conclusion that offence complained of is not established against any of the named accused. He, therefore, opined to submit a final report. Resultantly, a police report 3 dated 23.2.2020 in terms of Section 173(2) was submitted. 7. Aforementioned Police report was forwarded by Joint Director, U.P. Vigilance Establishment to the State Government vide his letter dated 11.5.2022. Upon receipt of the aforementioned police report, State Government, appears to have examined the matter. Considering the gravity of the offence, the matter was placed before Hon'ble the Chief Minister, who expressed his displeasure with the manner of investigation. Consequently, the State Government directed that further enquiry be held in the matter. In compliance of above, the matter was further investigated but nothing new and substantial emerged against any of the named accused or any one else. In the light of above, Investigating Officer again opined to submit police report. Resultantly, a police report (final report) was prepared. 8. As aforementioned police report came on record, the Joint Director, U.P. Vigilance Establishment Lucknow, send a letter dated 3.2.2023 recommending therein that charges alleged against named accused do not stand established, therefore, as the charges alleged against the named accused are not made out, no recommendation is made by Vigilance Establishment for criminal prosecution of the named accused. Aforesaid letter further records that no further action is pending at the end of U.P. Vigilance Establishment. Perusal of the aforementioned letter dated 6.3.2023 will go to show that cogent reasons have been assigned by the Joint Director for expressing his agreement with the final report. Clauses- 4 and 5 of the said report are very relevant for the issue in hand and shall be addressed too in the later part of this order. 9. The Additional Director General of Police (Personnel) U.P. in the office of the Director General of Police, U.P. also sent a letter dated 6.3.2023 addressed to the State Government, wherein the concurrence of Director General of Police with the police report was expressed and it was also 4 stated that no further action is warranted in the matter. 10. Upon completion of the formalities as noted herein above, Investigating Officer submitted police report dated 11.4.2023 in terms of Section 173 (2) Cr.P.C. which was registered as F.R. No. 04/539/2023 (Vijay Kumar Tripathi Vs. Himanshu Kumar), under sections 8/12 P.C. Act and Section 120 B IPC, Police Station- Meerut Sector (Vigilance Establishment), District- Meerut. 11. It is apposite to mention here that under the Code i.e. Cr.P.C. the words "Charge-Sheet" and "Police Report" have not been defined. The Code speaks only of the word "Police Report". There is no provision in
Legal Reasoning
the Code enabling the first informant to file his protest petition against Police report. However, the said previlage is now enjoyed by first informant on account of the judgement of Supreme Court in Bhagwant Singh Vs. Commisioner of Police and Another, (1985) 2 SCC 537. It is apposite to mention here that no protest petition was filed by first informant Inspector Vijay Kumar Triapthi before Court below against aforementioned Police report. 12. However, the Court below suo-moto examined the police report and the papers accompanying the police report. On the basis of evaluation and examination undertaken by Court below, it concluded that no good ground is made out to accept the police report. By assigning various reasons, the Court below ultimately, came to the conclusion that the Police Report dated 11.4.2023 (final report) is liable to be quashed and direction be issued for further investigation. Accordingly by means of an order dated 6.1.2024, passed by Additional Sessions Judge/Special Judge, Prevention of Corruption Act, Meerut, the police report dated 11.4.2023 (final report) was quashed and a direction was issued for further investigation. 13. Feeling aggrieved by the order dated 6.1.2024, applicant, who is a named accused in the F.I.R. giving rise to present criminal proceedings, 5 has now approached this Court by means of above mentioned application under section 482 Cr.P.C. 14. During pendency of application under section 482 Cr.P.C. filed by named accused- Himanshu Kumar, State Government has also filed on application under Section 482 Cr.P.C. challenging the same impugned order which is the subject mater of challenge in Application U/S 482 Cr.P.C. No. 5649 of 2024 (State of U.P. Vs. Himanshu Kumar and Another). Vide order dated 8.4.2024. Application U/S 482 Cr.P.C. No. 2289 of 2024 (Himanshu Kumar Vs. State of U.P. and Another) was connected with aforesaid applications. That is how the aforesaid application came to be connected. 15. Since both the applications arise out of the same impugned order,
Decision
therefore, they were heard together and are now being disposed of finally by a common judgement. 16. Mr. Manish Tiwary, the learned Senior Counsel for applicant- Himanshu Kumar, submits that the order impugned in present application is manifestly illegal and without jurisdiction. The matter was thoroughly investigated by Investigating Officer but no credible material could be collected by him qua the criminality alleged against applicant Himanshu Kumar. On the basis of above no inference regarding the guilt of accused- applicant-Himanshu Kumar can be drawn. It was on account of above that the final report was prepared and sent to the State Government. It is true that Hon'ble the Chief Minister expressed his displeasure with the police report and directions were issued for further investigation. However, even upon further investigation, no new reliable and credible material emerged on the basis of above an inference regarding the guilt of accused Himanshu Kumar and others could be made. It was on account of above that the Investigating Officer again opined to submit a final report. 17. The final report so prepared by Investigating Officer was examined by 6 U.P. Vigilance Establishment Cell, as is evident from the letter dated 3.2.2023 (Annexure-5 to the affidavit). Upon perusal of the said letter, it is apparent that Joint Director, U.P. Vigilance Establishment has assigned cogent reasons in support of second police report submitted by Investigating Officer to the effect that criminality alleged against accused including applicant- Himanshu Kumar is not borne out from the papers collected by Investigating Officer. Reference has then been made to the letter dated 6.3.2023, issued by office of Director General of Police, wherein a clear recital is contained that the Director General of Police has expressed his concurrence with the opinion formed by the Investigating Officer in the second police report. 18. It is further submitted that no protest petition was filed by first informant against the police report dated 11.4.2023. In the absence of any protest petition having been filed by first informant, there was no occasion before Court below to examine the papers accompanying the police report and take a decision otherwise to accept the police report. 19. It is lastly submitted that on a conjoint reading of material on record particularly Annexures-5, 6, 7 and 8 to the affidavit filed in support of the application preferred by accused-appliacnt-Himanshu Kumar, it is abundantly clear that no such credible and reliable evidence has emerged on record on the basis of which even an inference regarding guilt of applicant Himanshu Kumar can be inferred. There is nothing on record to show that any demand was made by any person or an attempt was made to bribe a public servant qua the posting/transfer of accused i.e. Himanshu Kumar. On the above conspectus, the learned Senior Counsel would submit that the impugned order is liable to be quashed. 20. Per contra, Mr. P.C. Srivastava, the learned Additional Advocate General submits that he can have no opposition to the submissions urged by the learned Senior Counsel for applicant. He, submits that since the 7 State Government has itself taken a decision to challenge the order impugned, therefore there is nothing to oppose the submissions urged by the learned Senior Counsel for accused applicant Himanshu Kumar. With much vehemence, reference was made to the recital contained in the letter sent by Joint Director, U.P. Vigilance Establishment (Annexure-5 to the affidavit) filed in support of application preferred by accused-applicant Himanshu Kumar. With emphasis upon the said document, he contends that clear observations have been made by Joint Director, U.P. Vigilance Establishement to show that irrespective of the elaborate and exhaustive investigation having been undertaken in the matter, no such credible and reliable material has emerged, so as to infer the guilt of accused Much stress was laid to the recital occurring in Clauses- 4 and 5 of the said letter. For ready reference, the same are reproduced herein below: “4. श्री अतुल कुमार शुक्ला के मोबाइल ओप्पो अतुल कुमार शुक्ला के मोबाइल ओप्पो कु मार शुक्ला के मोबाइल ओप्पो शुक्ला के मोबाइल ओप्पो मोबाइल कुमार शुक्ला के मोबाइल ओप्पो ओप्पो I.M.E.I. 863084635298033/ 863084635298025 का डाटा के मोबाइल ओप्पो न्द्री अतुल कुमार शुक्ला के मोबाइल ओप्पो य विधि विज्ञान प्रयोगशाला वि(cid:26)धि विज्ञान प्रयोगशाला(cid:28) वि(cid:26)ज्ञान प्रयोगशाला प्रय विधि विज्ञान प्रयोगशालाोगशाल कुमार शुक्ला के मोबाइल ओप्पो ा, हैदर शुक्ला के मोबाइल ओप्पो ाबाद ( आं ध्र प्रदेश प्रदे मोबाइल ओप्पो श) से मोबाइल ओप्पो प्राप्त विकय विधि विज्ञान प्रयोगशालाा गय विधि विज्ञान प्रयोगशालाा, जि*समें दि० विद० 07.7.2019 को की गयी चैट की पुष्टि हुयी परंतु कोई ऑडियो व अन्य चैट गय विधि विज्ञान प्रयोगशालाी अतुल कुमार शुक्ला के मोबाइल ओप्पो चैट की गयी चैट की पुष्टि हुयी परंतु कोई ऑडियो व अन्य चैट पुवि/ हुय विधि विज्ञान प्रयोगशालाी अतुल कुमार शुक्ला के मोबाइल ओप्पो पर शुक्ला के मोबाइल ओप्पो ंतु कोई ऑडियो व अन्य चैट ऑधि विज्ञान प्रयोगशालाडय विधि विज्ञान प्रयोगशालाो (cid:26) अन्य विधि विज्ञान प्रयोगशाला चैट प्राप्त न प्रयोगशालाहीं हुयी। हुय विधि विज्ञान प्रयोगशालाी अतुल कुमार शुक्ला के मोबाइल ओप्पो । 5. पुन प्रयोगशालार्वि(cid:26)(cid:26)े मोबाइल ओप्पो चन प्रयोगशालाा से मोबाइल ओप्पो भी अतुल कुमार शुक्ला के मोबाइल ओप्पो आई ऑडियो व अन्य चैट० पी अतुल कुमार शुक्ला के मोबाइल ओप्पो ० एस० अधि विज्ञान प्रयोगशाला(cid:28)कारिर शुक्ला के मोबाइल ओप्पो य विधि विज्ञान प्रयोगशालाों के स्थानान्तरण करने वाले किसी अधिकारी से के मोबाइल ओप्पो स्थान प्रयोगशालाान्तर शुक्ला के मोबाइल ओप्पो ण करने वाले किसी अधिकारी से कर शुक्ला के मोबाइल ओप्पो न प्रयोगशालाे मोबाइल ओप्पो (cid:26)ाल कुमार शुक्ला के मोबाइल ओप्पो े मोबाइल ओप्पो विकसी अतुल कुमार शुक्ला के मोबाइल ओप्पो अधि विज्ञान प्रयोगशाला(cid:28)कार शुक्ला के मोबाइल ओप्पो ी अतुल कुमार शुक्ला के मोबाइल ओप्पो से मोबाइल ओप्पो आर शुक्ला के मोबाइल ओप्पो ोपी अतुल कुमार शुक्ला के मोबाइल ओप्पो श्री अतुल कुमार शुक्ला के मोबाइल ओप्पो अतुल कुमार शुक्ला के मोबाइल ओप्पो कु मार शुक्ला के मोबाइल ओप्पो शुक्ला, श्री अतुल कुमार शुक्ला के मोबाइल ओप्पो स्(cid:26)प्निप्न प्रयोगशालाल कुमार शुक्ला के मोबाइल ओप्पो र शुक्ला के मोबाइल ओप्पो ाय विधि विज्ञान प्रयोगशाला (cid:26) श्री अतुल कुमार शुक्ला के मोबाइल ओप्पो चन्दन प्रयोगशाला र शुक्ला के मोबाइल ओप्पो ाय विधि विज्ञान प्रयोगशाला के मोबाइल ओप्पो सम्पक> होन प्रयोगशालाे मोबाइल ओप्पो के मोबाइल ओप्पो सम्बं(cid:28) में दि० कोई ऑडियो व अन्य चैट अभिभल कुमार शुक्ला के मोबाइल ओप्पो े मोबाइल ओप्पो खी अतुल कुमार शुक्ला के मोबाइल ओप्पो य विधि विज्ञान प्रयोगशाला ए(cid:26)ं मौखिखक साक्ष्य विधि विज्ञान प्रयोगशाला प्राप्त न प्रयोगशालाहीं हुयी। हुआ। संविदग्(cid:28) श्री अतुल कुमार शुक्ला के मोबाइल ओप्पो खर शुक्ला के मोबाइल ओप्पो े मोबाइल ओप्पो (cid:26) श्री अतुल कुमार शुक्ला के मोबाइल ओप्पो चन्दन प्रयोगशाला शुक्ला आविद से मोबाइल ओप्पो पूछताछ के मोबाइल ओप्पो बाद भी अतुल कुमार शुक्ला के मोबाइल ओप्पो उपर शुक्ला के मोबाइल ओप्पो ोक्त सम्बंध में कोई पुष्टिकारक साक्ष्य उपलब्ध नहीं हुआ है। सम्बं(cid:28) में दि० कोई ऑडियो व अन्य चैट पुवि/कार शुक्ला के मोबाइल ओप्पो क साक्ष्य विधि विज्ञान प्रयोगशाला उपल कुमार शुक्ला के मोबाइल ओप्पो ब्(cid:28) न प्रयोगशालाहीं हुयी। हुआ है।" 21. On the above conspectus, the learned Additional Advocate General submits that order impugned cannot be sustained in law and fact and therefore liable to be quashed by this Court. 22. Having heard the learned Senior Counsel for applicant, the learned Additional Advocate General for State and upon perusal of record, this Court finds that after submission of police report dated 11.4.2023, no protest petition was filed by first informant-Inspector Vijay Kumar Tripathi in the light of law laid down by Apex Court in Bhagwant Singh (Supra) 8 23. What is nature of jurisdiction of Jurisdictional Magistrate/Special Court upon submission of police report in terms of Section 173(2) is no longer res-intigra and now stands crystalized by the judgement of Supreme Court in Vishnu Kumar Tiwari Vs. State of U.P. and Another, 2019 (8) SCC 27. Paragraph 21 of aforesaid judgement is relevant for the present controversy and is accordingly reproduced herein under: " 21. In regard to the filing of protest petition by the informant who filed the First Information Report, it is important to notice the following discussion by this Court (Gangadhar Janardan Mhatre Case, 2004 7 SCC 768, SCCpp.772-74 paras 6 & 9): "6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537:1985 SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows: (SCC p. 542, para 4) '4.....There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report." 9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of 9 the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR 1989 SC 885] .] The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant