64 Case :- APPLICATION U/S 482 No. - 7176 of 2022 & Anr. v. Sudhir Kumar Tomar)

3. Heard Sri Pradeep Kumar, learned Senior Advocate assisted by Sri Narendra Singh Chahar, learned counsel for the applicant, Sri Sanjay Kumar Singh, learned counsel for the State and perused the record.

4. The present application under Section 482 Cr.P.C. has been filed by the applicant Sudhir Tomar with the following prayers :- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be please to allow this application and to quash the charge sheet dated 28.03.2018 as well as cognizance order dated 06.03.2020 passed by Additional District & Session Judge / Special Judge, P.C. Act, Court No. 2, Bareilly in Special Case No. 243 of 2020 (State vs. Sudhir Kumar Tomar), U/s 342, 504, 506 I.P.C. and 7/13 Prevention of Corruption Act, P.S. Mainther, District Moradabad. It is further prayed that this Hon'ble Court may kindly be pleased to quash the summoning order dated 06.03.2021 passed by the court of Special Judge, P.C. Act, Court No. 2, Bareilly in Case Crime No. 131-C of 2015." It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceeding of Special Case No. 243 of 2020 (State vs. Sudhir Kumar Tomar), U/s 342, 504, 506 I.P.C. and 7/13 Prevention of Corruption Act, P.S. Mainther, District Moradabad, pending in the court of Additional District & Session Judge / Special Judge, P.C. Act, Court No. 2, Bareilly as well as to stay the NBW issued on 09.12.2021 against the applicant, during the pendency of the present application before this Hon'ble Court, and / or pass such other and further order as this Hon'ble Court may deem fit and proper in the circumstances of the case."

5. The facts of the case particularly relating to the allegations are not being dilated herein, since the same has no concern with the dispute in the present matter.

6. Learned counsel for the applicant submits that challenge to the charge sheet dated 28.03.2018, order of cognizance dated

06.03.2020 and the summoning order dated 06.03.2020 is on the ground that the second sample of voice of the accused-applicant was taken without permission of court, which was after conclusion of the investigation.

7. The facts relating to the issue in dispute are that during investigation, the Investigating Officer gave a letter to the expert of Forensic Science Lab on 14.03.2016 stating that the sample of voice is to be recorded before the court of A.C.J.M.-IIIrd on

18.03.2016 at 11:00 a.m. and as such, he may make himself available for the same. It is submitted that on 13.03.2016, a letter was given to the applicant that his sample of voice is needed since the previous sample taken was not found to be proper by the Forensic Science Lab and as such he may appear before the Forensic Science Lab within three days for giving his sample of voice. It is submitted that the voice of applicant was recorded in the Forensic Science Lab which was requested to be tallied by the lab. It is further submitted that a report dated 04.11.2016 was given by the Forensic Science Lab regarding the sample of voice and the recorded voice. It is submitted that the charge sheet dated

28.03.2018 was submitted, on which the court concerned took cognizance and summoned the applicant vide order dated

06.03.2020.

8. It is further submitted that there is nothing on record to show that the sample of voice recorded at the second time was in proper procedure of it, since the same was not taken before the Magistrate. It is submitted that as such the Investigation is totally against the procedure and without considering the relevant and actual material.

9. Learned counsel for the State opposed the prayer for quashing and submitted that the material was taken up for further investigation and during the same, the sample of voice of the applicant was taken. It is submitted that the report of the Forensic Science Lab was considered and then, charge sheet was submitted. After further investigation, the Investigating Officer reiterated the view taken by the earlier Investigating Officer while submitting the charge sheet. It is submitted that there is no irregularity and illegality in the same. It is further submitted that the recording of voice sample was during part of investigation and further investigation.

10. After having heard the learned counsel for the parties and perusing the record, it is evident that the dispute as is being agitated in the present matter is regarding the taking of voice sample of the applicant accused by the Investigating Officer but not before the Magistrate concerned. The same is only pressed and argued that vehemence insofar as the investigation is concerned, the said act was during further investigation. Subsequent to the same, charge sheet was submitted on which the court concerned was taken cognizance and summoned the applicant. The irregularity, if any, in investigation has no bearing on the competence and the procedure relating to cognizance or trial. The cognizance taken on a charge sheet could not be set aside nor can proceedings be quashed on the ground that an illegality has been committed in the course of investigation.

11. 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."

12. In view of the same, no ground exists to interfere in the present application. The same is dismissed.

13. Accordingly, the present application is dismissed. Order Date :- 29.8.2024 Manoj (Samit Gopal,J.)