High Court
Case Details
Neutral Citation No. - 2024:AHC:126070 Court No. - 77 Case :- APPLICATION U/S 482 No. - 12426 of 2024 Applicant :- Indrajeet Yadav And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Maniji Bakhshi Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Legal Reasoning
1.Heard Sri Sandeep Maniji Bakhshi, learned counsel for the applicant, Sri Ram Prakash Shukla, learned counsel for the State and perused the record. 2. The present application u/s 482 Cr.P.C. has been filed by the applicants Indrajeet Yadav, Gorakh Yadav, Bodhnath Yadav@Godhnath Yadav with the following prayers:- "It is therefore most respectfully prayed that this Hon'ble High Court may kindly be pleased to quash the entire proceeding as well as the impugned cognizance and summoning order 30.08.2023 passed by Chief Judicial Magistrate, Sant Kabir Nagar in Case No. 11225/2023 (State vs. Indrajeet Yadav) and charge sheet dated 07.07.2023, under Sections 323, 504, 506, 308 Indian Penal Code arising out of first information report dated 06.06.2023 in Case Crime No. 0552/2023, Under Sections 323, 504, 506 Indian Penal Code, Police Station Khalilabad, District Sant Kabir Nagar. And it is further prayed that this Hon'ble Court be pleased to stay the entire criminal proceeding in connection of impugned cognizance and summoning order 30.08.2023 passed by Chief Judicial Magistrate, Sant Kabir Nagar in Case No. 11225/2023 (State vs. Indrajeet Yadav) and charge sheet dated 07.07.2023, under Sections 323, 504, 506, 308 Indian Penal Code arising out of first information report dated 06.06.2023 in Case Crime No. 0552/2023, Under Sections 323, 504, 506 Indian Penal Code, Police Station Khalilabad, District Sant Kabir Nagar, otherwise the Applicants shall suffer irreparable loss and injury. And/or pass such other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 3. A Non Cognizable Report was lodged on 17.05.2023 under Section 323 I.P.C. by the opposite party no. 2 against Indrajeet Yadav, Gorakh Yadav and Godhnath Yadav. During inquiry the police came to know that there has been threat to life by the accused persons and thus added Sections 504, 506 I.P.C. in the matter and started its investigation. The informant Ramkesh Yadav had received injuries which were medically examined on 17.5.2023 wherein one lacerated wound, a complaint of pain and dizziness and vomiting were reported. Injuries were directed to be kept under observations. He was sent for X-ray and X-ray of chest was conducted on 18.5.2023 in which there was no evidence of any bony fracture. Subsequently on 06.6.2023 his CT of head was conducted in which the doctor found hemorrhagic contusion in the right occipital region and fracture of right occipital bone. The case was then converted into one under Section 308 I.P.C. looking to the injuries received by him. Investigation concluded and a charge sheet under Sections 323, 504, 506, 308 I.P.C. was submitted against the accused-applicant and two other co-accused persons which is dated 07.07.2023, on which the court concerned vide its order dated 30.08.2023 took cognizance and summoned the accused under the said sections. The present application has thus been filed before this Court with the aforesaid prayers. 4. Learned counsel for the applicant submitted while placing paragraph-10 of the affidavit that a Non Cognizable Report as was lodged, was taken up for investigation by the police without any application being filed by the opposite party no. 2 under Section 155(2) Cr.P.C. and obtaining any order from the Magistrate concerned. It is submitted that the police on its own added Sections 504, 506 I.P.C. and took up the matter for investigation and proceeded with it which was totally illegal. It is submitted that the proceedings against the applicant were taken up just to falsely implicate and harass him. It is submitted that the injuries to the brain of the injured were initially not known and reported which was found later on and as such it cannot be said that the same were received in the present incident. It is submitted that the applicant is having no criminal history as stated in paragraph-27 of the affidavit. 5. Per contra, learned State counsel opposed the prayer for quashing. 6. After having heard learned counsels for the parties and perusing the records, it is evident that although the police after N.C.R. on an inquiry added Sections 504, 506 I.P.C. and then started investigation in the matter but subsequently looking to the injuries received by the injured/informant, the matter was then taken up and Section 308 I.P.C. was added in it, subsequent to which a charge sheet was submitted on which cognizance has been taken by the court concerned. In so far as inquiry by the police after registering of N.C.R. is concerned, since the court concerned has taken cognizance the same thus becomes of no fruitful purpose. The law on this aspect is well settled that if cognizance is taken on a police report initiated by the breach of mandatory provision relating to investigation, the result of trial, which follows it, cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. 7. In the case of Union of India v. Prakash P. Hinduja : (2003) 6 SCC 195 it has been held by the Apex Court as under : "21. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the court may also be examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 and Section 165-A IPC or under Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N. Rishbud [AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down : (AIR pp. 203-04, para 9) "9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial." The Court after referring to Parbhu v. Emperor [AIR 1944 PC 73 : 46 Cri LJ 119] and Lumbhardar Zutshi v. R. [AIR 1950 PC 26 : (1950) 51 Cri LJ 644] held that if cognizance is in fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. This being the legal position, even assuming for the sake of argument that CBI committed an error or irregularity in submitting the charge-sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case." 8. In view of the same and looking to law on the subject and the fact of the matter and also looking to the fact that Section 308 I.P.C. has been added and charge sheet has been submitted on which court concerned court has taken cognizance, the prosecution cannot be knocked out only on the basis of the Investigating Officer not being empowered to investigate the matter without there being an application under Section 155(2) Cr.P.C. by the informant. 9. The present petition thus devoid of any merit and is accordingly dismissed. (Samit Gopal,J.) Order Date :- 2.8.2024/Naresh