Alok Tiwari and Others v. State of U.P. and Another), but the same was also dismissed by learned Additional

Petitioner :- Alok Tiwari And 3 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Arun Kumar Srivastava,Rajesh Kumar Yadav Counsel for Respondent :- G.A.,Laxmi Sagar Yadav,Prabha Shanker Bharti Hon'ble Saurabh Srivastava,J.

1. Heard Sri Arun Kumar Srivastava, learned counsel for the petitioners and learned A.G.A. for the State.

2. The instant petition has been preferred for challenging the order dated 03.10.2022 passed by learned Judicial Magistrate, Chandauli in Criminal Case No.9358 of 2020 (State Vs. Alok Tiwari and Others) over the application under section 239 Cr.P.C. preferred at the behest of petitioners and after having rejection of the same, petitioner preferred Criminal Revision No.144 of 2023 (Alok Tiwari and Others Vs. State of U.P. and Another), but the same was also dismissed by learned Additional Session Judge (F.T.C.-I), Chandauli vide order dated 14.05.2024 and as such both the orders impugned the present petition.

3. Learned counsel for the petitioners submitted that the discharge has been sought precisely over three grounds amongst other grounds inter-alia:- (i) Initially the matter has been registered as N.C.R. on dated 30.12.2013 with regard to the incident of 24.12.2013; (ii) At the time of preferring application under section 155(2) Cr.P.C., the entire narration and allegation has been exaggerated by way of implicating ten persons including the four persons (petitioners herein), who are already named in the N.C.R. and specific wordings has been mentioned while preferring application under section 155(2) Cr.P.C. that investigation may be directed by learned court concerned in pursuance to certain more sections and the same has been allowed. (iii) The constituted Medical Board intimated the concerned Investigating Officer for putting personal appearance of accused along with victim, but no heed was paid by concerned Investigating Officer; even after when the request has been made by petitioners before Medical Board again several opportunities have been extended to concerned Investigating Officer for putting the victim before Medical Board for his examination, but the same has not been availed/complied with.

4. Precisely a query has been made before learned counsel for the petitioners that whether any challenge has been made with regard to order passed over the application under section 155(2) Cr.P.C., it is replied that there was hardly any locus available to the petitioners and due to want of any specific information with regard to proceeding conducted by the respondent no.2, the same has not been put under challenge, but once the charge-sheet has been submitted without any substantial evidences by way of implicating the petitioners, the discharge application has been preferred before learned trial court on the grounds as mentioned above, but the same has not been entertained and once no credence has been given by learned revisional court, cause of action arises in favour of petitioners for filing the instant petition before this Court.

5. Per contra, learned A.G.A. vehemently opposed the prayer as made in the petition and submitted that the third grounds taken up by learned counsel for the petitioners in respect of constitution of Medical Board and non-appearance of the victim before the same, which has been initiated way back in the year 2014, the same cannot be taken as a ground while seeking discharge since no relative document has been appended while preferring instant petition that under which circumstances the Medical Board has been constituted and is there any judicial proceeding conducted over the same, which compelled the Investigating Officer for putting appearance of the victim before Medical Board.

6. So far as regarding the rest of two grounds, learned A.G.A. fairly submitted that application under section 155(2) Cr.P.C. preferred at the behest of respondent no.2 on dated 08.01.2014, which was allowed by learned concerned court is prima-facie preferred in gross violation of the procedure available at law.

7. After hearing rival submissions extended by learned counsel for the parties, this Court is appreciating the gesture of Mr. G.L. Chaudhary, learned A.G.A.-I, who accepted the flaw available in the application under section 155(2) Cr.P.C. preferred at the behest of respondent no.2, which is apparent and crystal clear by bare perusal of the same. While preferring application under section 155(2) Cr.P.C., respondent no.2 mentioned sections 395, 354, 325, 323, 452, 504, 506 & 427 I.P.C. to be included at the time of investigation; learned concerned court directed the matter to be investigated by concerned police station, which culminated into preferring charge-sheet in pursuance to sections 323, 325, 504 & 506 I.P.C.

8. The arguments raised by learned counsel for the petitioners with attractions of sections must be dependent upon the evidences available before the Inquiry Officer, which has been collected during inquiry and it is apparent from the sequence of events that at the time of registering N.C.R. with regard to incident after eight days, there was no evidence available before respondent no.2, which may attract sections 323, 325, 504 & 506 I.P.C., but later on once the inquiry has been conducted in pursuance to direction issued by learned concerned court over the application preferred at the behest of respondent no.2 under section 155(2) Cr.P.C., the material evidence which has been required for attraction of sections under which the charge-sheet has been submitted is to be strictly collected by the Investigating Officer and once the same has been brought to the notice of Court regarding constitution of any Medical Board, which is prior to the submission of charge- sheet, has to be given proper response by the concerned Investing Officer.

9. The evidence collected and the list of witnesses appended at the time of preferring charge-sheet crystal clearly shows the name of two doctors being the prosecution witnesses, which itself shows that the medical examination was conducted, but once the Medical Board has been constituted, there was no occasion available before the concerned Investigating Officer for producing the victim before the same.

10. In view of the aforementioned facts and circumstances, the nature of application preferred under section 155(2) Cr.P.C. and non-production of the victim before Medical Examination Board compelled this Court to intervene in the orders passed by learned court concerned, while considering the discharge application preferred at the behest of petitioners as well as revisional order dated 14.05.2024 passed by learned Additional Session Judge, Chandauli in Criminal Revision No.144 of 2023 (Alok Tiwari and Others Vs. State of U.P. and Another), which slightly failed to consider the grounds as preferred on behalf of petitioners.

11. In the light of discussion as made above, order dated 03.10.2022 passed by learned Judicial Magistrate, Chandauli in Criminal Case No.9358 of 2020 (State Vs. Alok Tiwari and Others) arising out of Case Crime No.134 of 2014 as well as order dated 14.05.2024 passed by learned Additional Session Judge (F.T.C.-I), Chandauli in Criminal Revision No.144 of 2023 (Alok Tiwari and Others Vs. State of U.P. and Another) are hereby set- aside, the matter is remitted back to learned court of Judicial Magistrate, Chandauli/concerned court for deciding the application preferred at the behest of petitioners under section 239 Cr.P.C. as fresh by way of recording the reasoning over the issue of implicating certain other persons in the application filed by respondent no.2 under section 155(2) Cr.P.C. with some additional sections as well as issue of non-compliance of the notices and the information issued by Medical Board to concerned Investigating Officer for producing the victim before the Medical Board for medical examination.

12. The above-mentioned exercise shall be completed and finalized as expeditiously as possible, preferably within a period of two months from the date of production of certified copy of this order.

13. However, it is made clear that the above-mentioned direction has been issued on the basis of pleadings available while preferring the instant petition, if in any case, respondent no.2 is having any prejudice with this order, wherein facts are suppressed by the petitioners while preferring the instant petition, liberty will be open for seeking recall of this order.

14. The instant petition stands allowed accordingly. Order Date :- 6.2.2025 Saif SHAIKH SAIF ABDIN High Court of Judicature at Allahabad

Petitioner :- Alok Tiwari And 3 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Arun Kumar Srivastava,Rajesh Kumar Yadav Counsel for Respondent :- G.A.,Laxmi Sagar Yadav,Prabha Shanker Bharti Hon'ble Saurabh Srivastava,J.

1. Heard Sri Arun Kumar Srivastava, learned counsel for the petitioners and learned A.G.A. for the State.

2. The instant petition has been preferred for challenging the order dated 03.10.2022 passed by learned Judicial Magistrate, Chandauli in Criminal Case No.9358 of 2020 (State Vs. Alok Tiwari and Others) over the application under section 239 Cr.P.C. preferred at the behest of petitioners and after having rejection of the same, petitioner preferred Criminal Revision No.144 of 2023 (Alok Tiwari and Others Vs. State of U.P. and Another), but the same was also dismissed by learned Additional Session Judge (F.T.C.-I), Chandauli vide order dated 14.05.2024 and as such both the orders impugned the present petition.

3. Learned counsel for the petitioners submitted that the discharge has been sought precisely over three grounds amongst other grounds inter-alia:- (i) Initially the matter has been registered as N.C.R. on dated 30.12.2013 with regard to the incident of 24.12.2013; (ii) At the time of preferring application under section 155(2) Cr.P.C., the entire narration and allegation has been exaggerated by way of implicating ten persons including the four persons (petitioners herein), who are already named in the N.C.R. and specific wordings has been mentioned while preferring application under section 155(2) Cr.P.C. that investigation may be directed by learned court concerned in pursuance to certain more sections and the same has been allowed. (iii) The constituted Medical Board intimated the concerned Investigating Officer for putting personal appearance of accused along with victim, but no heed was paid by concerned Investigating Officer; even after when the request has been made by petitioners before Medical Board again several opportunities have been extended to concerned Investigating Officer for putting the victim before Medical Board for his examination, but the same has not been availed/complied with.

4. Precisely a query has been made before learned counsel for the petitioners that whether any challenge has been made with regard to order passed over the application under section 155(2) Cr.P.C., it is replied that there was hardly any locus available to the petitioners and due to want of any specific information with regard to proceeding conducted by the respondent no.2, the same has not been put under challenge, but once the charge-sheet has been submitted without any substantial evidences by way of implicating the petitioners, the discharge application has been preferred before learned trial court on the grounds as mentioned above, but the same has not been entertained and once no credence has been given by learned revisional court, cause of action arises in favour of petitioners for filing the instant petition before this Court.

5. Per contra, learned A.G.A. vehemently opposed the prayer as made in the petition and submitted that the third grounds taken up by learned counsel for the petitioners in respect of constitution of Medical Board and non-appearance of the victim before the same, which has been initiated way back in the year 2014, the same cannot be taken as a ground while seeking discharge since no relative document has been appended while preferring instant petition that under which circumstances the Medical Board has been constituted and is there any judicial proceeding conducted over the same, which compelled the Investigating Officer for putting appearance of the victim before Medical Board.

6. So far as regarding the rest of two grounds, learned A.G.A. fairly submitted that application under section 155(2) Cr.P.C. preferred at the behest of respondent no.2 on dated 08.01.2014, which was allowed by learned concerned court is prima-facie preferred in gross violation of the procedure available at law.

7. After hearing rival submissions extended by learned counsel for the parties, this Court is appreciating the gesture of Mr. G.L. Chaudhary, learned A.G.A.-I, who accepted the flaw available in the application under section 155(2) Cr.P.C. preferred at the behest of respondent no.2, which is apparent and crystal clear by bare perusal of the same. While preferring application under section 155(2) Cr.P.C., respondent no.2 mentioned sections 395, 354, 325, 323, 452, 504, 506 & 427 I.P.C. to be included at the time of investigation; learned concerned court directed the matter to be investigated by concerned police station, which culminated into preferring charge-sheet in pursuance to sections 323, 325, 504 & 506 I.P.C.

8. The arguments raised by learned counsel for the petitioners with attractions of sections must be dependent upon the evidences available before the Inquiry Officer, which has been collected during inquiry and it is apparent from the sequence of events that at the time of registering N.C.R. with regard to incident after eight days, there was no evidence available before respondent no.2, which may attract sections 323, 325, 504 & 506 I.P.C., but later on once the inquiry has been conducted in pursuance to direction issued by learned concerned court over the application preferred at the behest of respondent no.2 under section 155(2) Cr.P.C., the material evidence which has been required for attraction of sections under which the charge-sheet has been submitted is to be strictly collected by the Investigating Officer and once the same has been brought to the notice of Court regarding constitution of any Medical Board, which is prior to the submission of charge- sheet, has to be given proper response by the concerned Investing Officer.

9. The evidence collected and the list of witnesses appended at the time of preferring charge-sheet crystal clearly shows the name of two doctors being the prosecution witnesses, which itself shows that the medical examination was conducted, but once the Medical Board has been constituted, there was no occasion available before the concerned Investigating Officer for producing the victim before the same.

10. In view of the aforementioned facts and circumstances, the nature of application preferred under section 155(2) Cr.P.C. and non-production of the victim before Medical Examination Board compelled this Court to intervene in the orders passed by learned court concerned, while considering the discharge application preferred at the behest of petitioners as well as revisional order dated 14.05.2024 passed by learned Additional Session Judge, Chandauli in Criminal Revision No.144 of 2023 (Alok Tiwari and Others Vs. State of U.P. and Another), which slightly failed to consider the grounds as preferred on behalf of petitioners.

11. In the light of discussion as made above, order dated 03.10.2022 passed by learned Judicial Magistrate, Chandauli in Criminal Case No.9358 of 2020 (State Vs. Alok Tiwari and Others) arising out of Case Crime No.134 of 2014 as well as order dated 14.05.2024 passed by learned Additional Session Judge (F.T.C.-I), Chandauli in Criminal Revision No.144 of 2023 (Alok Tiwari and Others Vs. State of U.P. and Another) are hereby set- aside, the matter is remitted back to learned court of Judicial Magistrate, Chandauli/concerned court for deciding the application preferred at the behest of petitioners under section 239 Cr.P.C. as fresh by way of recording the reasoning over the issue of implicating certain other persons in the application filed by respondent no.2 under section 155(2) Cr.P.C. with some additional sections as well as issue of non-compliance of the notices and the information issued by Medical Board to concerned Investigating Officer for producing the victim before the Medical Board for medical examination.

12. The above-mentioned exercise shall be completed and finalized as expeditiously as possible, preferably within a period of two months from the date of production of certified copy of this order.

13. However, it is made clear that the above-mentioned direction has been issued on the basis of pleadings available while preferring the instant petition, if in any case, respondent no.2 is having any prejudice with this order, wherein facts are suppressed by the petitioners while preferring the instant petition, liberty will be open for seeking recall of this order.

14. The instant petition stands allowed accordingly. Order Date :- 6.2.2025 Saif SHAIKH SAIF ABDIN High Court of Judicature at Allahabad