Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2500 (ALL)

JUNAID PAHALWAN v. STATE OF U. P.

2010-08-17

S.K.TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. Pradeep Chauhan for the applicant and AGA for the respondent No. 1 and perused the record. 2. This is a petition for quashing the proceedings of Special S.T. No. 130/2010 State vs. Junaid Pahalwan and another under Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act (in short ‘the Act)’, police station Bhognipur, district Kanpur Dehat, pending in the Court of Special Judge, Gangster Act, Kanpur Dehat. 3. Mr. Pradeep Chauhan submitted that according to the gang chart, the applicant has a criminal history of four case, out of which the case under Section 25 Arms Act does not fall in the category of cases specified under the Act. In case crime No. 323/2004 a final report has been submitted and in case crime No. 98/2005 the applicant has been acquitted. Presently only one case against the applicant is standing, which is case crime No. 136/2008 under Sections 302, 394, 504 and 506 IPC, police station Bhognipur, district Kanpur Dehat, in which too the investigating officer had submitted a final report and the Superintendent of Police illegally obtained an advice of the Senior Prosecuting Officer and directed filing of the charge sheet against the applicant, therefore, the charge sheet filed on a legal advice is not maintainable and the case is liable to be struck off. In this connection, Mr. Chauhan placed reliance on R. Sarala v. T.S. Velu and others, 2000 (40) ACC 1021. 4. It may not be out of context to mention that the applicant has not filed any petition for quashing the charge sheet as well as the proceedings of the Criminal case relating to case crime No. 136/2008 and the matter is still pending before the trial Court, therefore, the applicant cannot be permitted to assail the charge sheet of that case in the present petition filed in respect of a different case. 5. Moreover the Superintendent of Police being a superior officer had power to supervise the investigation made by his subordinates. If he sought for a legal opinion from the Senior Prosecuting Officer, it cannot be contended that the Superintendent of Police acted contrary to law. It was always open to the Superintendent of Police to take legal assistance before forming a final conclusion. If he sought for a legal opinion from the Senior Prosecuting Officer, it cannot be contended that the Superintendent of Police acted contrary to law. It was always open to the Superintendent of Police to take legal assistance before forming a final conclusion. In my opinion, the verdict of the Apex Court in R. Sarla’s case (supra) is of no help to the applicant. In that case the Apex Court has held that the High Court’s order directing the investigating officer to take opinion of Public Prosecutor for filing charge sheet was not proper. The Apex Court has further held that opinion of the Public Prosecutor had no relevance and the investigating officer was not required to seek opinion in the matter. In my opinion, the facts of the case of R. Sarala (supra) were some how different. In that case a young bride had committed suicide. An inquiry under Section 174 (3) Cr.P.C. was held. The Sub Divisional Officer, who conducted the inquiry, found that due to mental restlessness the bride had committed suicide and no one was responsible and he accordingly inferred that her death was not due to dowry harassment. However, the police continued with the investigation and submitted a challan against the husband of bride and his mother under Sections 304-B and 498-A IPC. The bride’s father was not satisfied with the challan as the sister of the husband of his daughter had been exonerated and was not made as accused. The deceased’s father filed a petition under Section 482 Cr.P.C. The High Court directed that the papers shall be placed before the Public Prosecutor as it is, without any further investigation, and he shall render an impartial opinion in the matter and thereafter an amended charge sheet shall be filed in the concerned Court. In view of peculiar facts of that case the Apex Court was of the view that High Court was not justified in giving direction to seek opinion of the Public Prosecutor. It was further held that the investigating officer, though, is subject to supervision by his superiors in rank, is not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. It was further held that the investigating officer, though, is subject to supervision by his superiors in rank, is not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. The opinion of the Public Prosecutor in such circumstances was held not relevant and the order of the High Court directing the investigating officer to seek opinion of the Public Prosecutor, was set aside. 6. In R. Sarala’s case (supra) the Apex Court has further held in para 7 as follows : “The question here is not simply whether an investigating officer, on his own volition or on his own initiative, can discuss with the Public Prosecutor or any legal talent, for the purpose of forming his opinion as to the report to be laid in the Court. Had that been the question involved in this case it would be unnecessary to vex our mind because it is always open to any officer, including any investigating officer, to get the best legal opinion on any legal aspect concerning the preparation of any report. But the real question is, should the High Court direct the investigating officer to take opinion of the Public Prosecutor for filing the charge-sheet.” 7. In R. Sarala’s case (supra) the legality of the order of the High Court giving direction to the investigating officer to take opinion of the Public Prosecutor for filing the charge sheet was in issue before the Apex Court and that question was considered and answered against the verdict of the High Court and it was held that there was no compulsion on the part of the investigating officer to seek legal opinion and the High Court had no power to issue such direction. In my opinion, R. Sarala’s case (supra) instead of supporting the case of the applicants, supports the act of the investigating officer in seeking legal opinion on the final report. 8. In view of the fact that the applicant has a criminal history and is an accused in the case crime No. 136/2008 under Sections 302, 394, 504 and 506 IPC, police station Bhognipur, district Kanpur Dehat, lodging of the present case against him under Section 3(1) of the Act cannot be said to be without any basis. 9. In my opinion the petition has no merit and is accordingly dismissed. 9. In my opinion the petition has no merit and is accordingly dismissed. However, the applicant’s bail prayer may be considered and disposed of expeditiously. ————