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2010 DIGILAW 2702 (ALL)

Radheyshyam Pandey v. State of U. P.

2010-09-06

RAJ MANI CHAUHAN

body2010
Hon'ble Raj Mani Chauhan, J. 1. Heard learned counsel for the petitioners and Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State as well as perused the documents available on record. 2. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the accused-petitioners for quashing the impugned charge-sheet dated 10.5.2010 filed by the Investigating Officer in case Crime No. 623 of 2009, under Sections 326/302/506 IPC, P.S. Jaisinghpur, District Sultanpur as well as the impugned summoning order dated 16.7.2010 passed by the learned Chief Judicial Magistrate, Court No. 16, Sultanpur in the criminal case arising out of the aforesaid charge-sheet. 3. In this petition, the following two questions are involved for consideration before this Court: (I)Whether the impugned charge-sheet filed by the Investigating Officer against the accused-petitioners is liable to be quashed? (II)Whether the proceeding of criminal case pending against the accused-petitioners before the Chief Judicial Magistrate, Sultanpur arising out of the aforesaid charge sheet is liable to be stayed? 4. With the consent of learned Additional Government Advocate the petition is being finally disposed of at this stage. 5. The relevant facts giving rise to present petition as borne out from the materials available on record in brief are that the deceased-Kiran Pandey, W/o of Radheyshyam Pandey, R/o Village Barehta, P.S. Kotwali Jasinghpur, District Sultanpur had taken loan of Rs. 10,000/- from the accused-petitioner no. 1-Radheyshyam Pandey, S/o Late Sri Ram Adhar Pandey resident of the same village sometime six months' back prior to the date of the alleged occurrence i.e. on 30.10.2009. She had handed over the possession of her one bigha land to the accused-Radheyshyam Pandey to secure his debt. The accused-Radheyshyam Pandey and his son Jitendra Pandey @ Sholey Pandey used to ask her to repay back the amount of loan but on account of financial hardships she was unable to repay back the same. The accused-Radhey Shyam Pandey on 30.10.2009 called her at his newly constructed house consequently she at about 11:30 AM reached there. Jitendra Pandey @ Sholey Pandey who is the son of the accused-petitioner no.1 asked her to repay back the loan amount which she had taken from his father. She, however, ensured that she would repay back the loan very soon. Jitendra Pandey @ Sholey Pandey became furious on her reply. Jitendra Pandey @ Sholey Pandey who is the son of the accused-petitioner no.1 asked her to repay back the loan amount which she had taken from his father. She, however, ensured that she would repay back the loan very soon. Jitendra Pandey @ Sholey Pandey became furious on her reply. He poured kerosene oil on her body and set her ablaze. When she caught fire, she screamed which attracted her daughters Km Puja Pandey, Km. Shikha Pandey and Smt. Jyoti Mishra who reached at the spot and put off the fire. The daughters of the injured called her maternal uncle (Mama) who reached at their house. The injured, thereafter, along with her brother went to the police station on the same day at about 4:00 PM and lodged a written report there. 6. On the basis of written report of the injured, the police of P.S. Jainghpur, District Sultanpur registered a case under Sections 326/504/506 IPC against the accused-Jitendra Pandey @ Sholey Pandey for investigation. The injured was sent to the District Hospital for medical examination and treatment from where she was referred to the C.S.M.U. (Chhatrapati Sahuji Maharaj Medical University), Lucknow. While she was under treatment there she succumbed to her burn injuries on 04.1.2010. Thereafter, the Investigating Officer added Section 302 IPC against the accused. 7. The Investigating Officer during the course of investigation, recorded the statement of persons acquainted with the facts and circumstances of the case and on the basis of their statement he found the involvement of the accused-Radheyshyam Pandey too in the incident. The Investigating Officer could not arrest any of the accused as the accused had filed a Writ Petition before this Court. The Investigating Officer after completion of the investigation submitted charge-sheet against the accused in the court of Chief Judicial Magistrate, Sultanpur showing them to be absconder. The Chief Judicial Magistrate, Sultanpur took cognizance of the offences on the basis of charge sheet submitted by the Investigating Officer and summoned the accused vide impugned order dated 16.7.2010. 8. While the case was under investigation, the accused-petitioner no. 1-Radheyshyam Pandey filed a Writ Petition No. 4430 (MB) of 2010 under Article 226 of the Constitution of India before the Court for transfer of the investigation of the case from the Civil Police to CBCID. 8. While the case was under investigation, the accused-petitioner no. 1-Radheyshyam Pandey filed a Writ Petition No. 4430 (MB) of 2010 under Article 226 of the Constitution of India before the Court for transfer of the investigation of the case from the Civil Police to CBCID. The writ petition was disposed of by the Hon'ble Division Bench of this Court with the observation that the petitioner may approach before the appropriate authorities for redressal of his grievances. 9. In pursuant to the order passed by this Court, the accused-petitioner no. 1-Radheyshyam Pandey preferred a representation on 29.5.2010 before the Principal Secretary, Home, Govt. of U.P., Lucknow but his representation was not being given attention, therefore, he had to approach this court again by filing another Writ Petition No. 5518 (MB) of 2010 under Article 266 of the Constitution of India which was disposed of by the Hon'ble Division Bench of this Court vide order dated 08.6.2010 directing the Principal Secretary, Home, Govt. of U.P., Lucknow to decide the representation of the accused-petitioner no. 1 within one week from the date of order consequently, the Principal Secretary, Home decided his representation and the investigation was entrusted to CBCID. In the meantime the Investigating Officer had already filed charge-sheet against the accused before the Chief Judicial Magistrate, Sultanpur who took cognizance of the offence and summoned the accused vide impugned order dated 16.7.2010. 10. The contention of the learned counsel for the petitioners is that although the Chief Judicial Magistrate has taken cognizance of the offence on the basis of charge-sheet submitted by the Investigating Officer but the case is still under investigation by the CBCID. In fact the accused-petitioner no. 1-Radheyshyam Pandey is Headmaster in a Primary School and on the date of occurrence he was present there in the school, he at the time of so called occurrence distributed scholarships to the students in the presence of their guardians. At the time of occurrence, he was not present on the spot; rather he was present in his school. The deceased did not assign any role to the accused-Radheyshyam Pandey in the FIR lodged by her. The FIR was lodged only against the Jitendra Pandey @ Sholey Pandey. Since the matter is still under investigation and the positive results of such investigation is expected. The deceased did not assign any role to the accused-Radheyshyam Pandey in the FIR lodged by her. The FIR was lodged only against the Jitendra Pandey @ Sholey Pandey. Since the matter is still under investigation and the positive results of such investigation is expected. In the circumstances, it will not be proper for the Chief Judicial Magistrate to proceed with the criminal case arising out of the aforesaid charge-sheet. The learned counsel for the petitioner, therefore, submits that the proceeding of criminal case arising out of the aforesaid charge-sheet be ordered to be stayed till final outcome of the investigation which is being conducted by the CBCID. The learned counsel for the petitioners in support of his argument has placed reliance on the law laid down by this Court in the case of Rakesh Kumar Srivastava Vs. State of U.P.; [2004 (48) ACC 18]. 11. Sri Rajendra Kumar Dwivedi, A.G.A. vehemently opposed the petition and argued that the Investigating Officer belonging to civil police had already completed the investigation of the case, he on the basis of evidence collected by him found that there was prima facie evidence against the accused in support of commission of offence under Sections 326/302/506 IPC. He, therefore, submitted charge-sheet against the accused before the learned Chief Judicial Magistrate, Sultanpur who on the basis of charge-sheet took cognizance of the offences mentioned therein. Thereafter, the further investigation of the case was entrusted to the CBCID. 12. Sri Dwivedi submits that as per established principle of law if a Magistrate takes cognizance of an offence on the basis of the charge-sheet submitted by the Investigating Officer after investigation and summons the accused, the proceeding of criminal case cannot be stayed on the ground that the case has been entrusted to the same agency or any other agency for further investigation. There is no provision in the Code that the subsequent investigation will be a bar to proceeding of the criminal case initiated on the earlier charge-sheet in the same case. The Chief Judicial Magistrate, Sultanpur has taken cognizance of the offences on the basis of charge sheet submitted by the Investigating Officer which is based on the evidence. There is no provision in the Code that the subsequent investigation will be a bar to proceeding of the criminal case initiated on the earlier charge-sheet in the same case. The Chief Judicial Magistrate, Sultanpur has taken cognizance of the offences on the basis of charge sheet submitted by the Investigating Officer which is based on the evidence. The Chief Judicial Magistrate applying his mind has taken cognizance of the offences and summoned the accused by the impugned order which does not suffer from any illegality and as such the same does not call for any interference. Sri Dwivedi in support of his argument has placed reliance in the cases of Daya Shankar Singh Vs. State of U.P.; [1988 (25) ACC 270], Zulfiqar Beg alias Baby VS. State of U.P.; [1992 (29) ACC 260], Smt. Ramawati and others. Vs. State of U.P. And others; [2001 (42) ACC 751] and Bhopal and others Vs. State of U.P. And others; [1997 (34) ACC 371], all decided by this Court. 13. I have given thoughtful consideration to the rival submissions advanced by the learned counsel for the petitioners and the learned A.G.A. 14. In the case of Rakesh Kumar Srivastava (supra), a case was registered at Police Station Cantt., District Gorakhpur for investigation, the Investigating Officer after investigation of the case submitted charge-sheet before the Chief Judicial Magistrate, Gorakhpur subsequent thereto further investigation of the case was assigned to Economic Offences Unit, Varanasi Region by a Government Order dated 10th July, 2000. The Inspector Economic Offences, Varanasi Region moved an application before the Chief Judicial Magistrate to permit him to have copies of the relevant papers from the record for further investigation. The accused moved an application before the Chief Judicial Magistrate to stay the further proceeding of criminal case pending against them on the ground that the matter is being further investigated by Economic Offences Unit, Varanasi Region and final outcome of the further investigation is awaited. The application was rejected by the Chief Judicial Magistrate with the observation that the court had already taken cognizance of the offence on the basis of charge-sheet submitted by the Investigating Officer and the trial is proceeding against the accused, therefore, the proceeding of trial cannot be stayed. The accused being aggrieved by the impugned order passed by the Chief Judicial Magistrate filed petition under Section 482 of the Code before this Court. The accused being aggrieved by the impugned order passed by the Chief Judicial Magistrate filed petition under Section 482 of the Code before this Court. This court was of the view that since the matter was under further investigation which was being conducted by Economic Offences Unit, Varanasi Region, therefore, it would not be proper to proceed further with the trial pending against the accused which had arisen out of the charge-sheet filed by the earlier Investigating Officer. The petition was, therefore, allowed by the Hon'ble Court. The relevant observation of the Hon'ble Court finds place in para 5 of the judgment which is being extracted below: "...5. From the aforesaid facts and circumstances, it is quite clear that the Government had ordered further investigation in the case, which was going on. If the Cantt. Police have submitted charge-sheet it was not necessary that the trial should have forthwith started. There was every likelihood of certain positive result in the ongoing investigation in the case which could be favourable to the accused. As such it was not necessary rather, it could prejudice the interest of the accused, if the case is concluded without waiting for the results of further investigation going on in the matter. The order of the Magistrate refusing t grant the stay of the trial, which has been challenged in this petition appears to be not sound in the eye of law and it does require interference...." 15. But in the case of Daya Shankar Singh (supra), it has been held by this Court that where the court has already taken cognizance of the offence on the charge-sheet submitted by the Investigating Officer and the case is being further investigated, the court is not bound to stay the judicial proceeding which has already been initiated by it on the basis of charge-sheet filed by the Investigating Officer. The court after going through the earlier case laws has held that "I hold that the contention that in every case of re-investigation the court is bound to stay the further judicial proceedings pending in that court cannot be accepted and the matter will have to be considered on the facts and circumstances of each case by the Court in whose vest the discretion in this regard." 16. In the case of Zulfiqar Beg alias Baby (supra), the same view had been taken by the court as was taken by this court in the case of Daya Shankar Singh Vs. State of U.P. (supra). In this case, the Hon'ble Court declined to stay the proceeding of criminal case pending before the Trial Court which had been initiated on the basis of charge-sheet submitted by the Investigating Officer when the case was ordered to be further investigated by the CBCID. 17. In the case of Smt. Ramawati and others (supra), the petitioner-Smt. Ramawati and others had filed a writ petition under Article 226 of the Constitution of India praying that the order contained in the telex message dated 30.1.2001 transferring the case from CBCID to Civil Police be quashed. The facts of the case were that one Jagat Narain Pandey had lodged a written report at P.S. Kotwali, District Auraiya on 03.5.2000 alleging that his two sons were done to death by the accused. The police of P.S. Kotwali, Auraiya on written report of the informant registered a case under Sections 302/394/506 IPC at Crime No. 205 of 2000 for investigation. The case was being investigated by the local police. The petitioner-Smt. Ramawati moved an application before the Chief Minister, Uttar Pradesh praying that the investigation of the case be transferred from local police to the CBCID. The state government on the representation of Smt. Ramawati took a decision to transfer the investigation from civil police to CBCID and the said decision was communicated by the government to the Director General of Police, Govt. of U.P., Lucknow vide letter dated 29.5.2000. In the meantime the Investigating Officer of local police after investigation of the case submitted charge-sheet before the Chief Judicial Magistrate, Auraiya who took cognizance of the offence on the basis of charge-sheet submitted by the Investigating Officer. However, on 19.1.2001 another government order was issued transferring the case from CBCID to local police. The telex message dated 30.1.2001 was sent to the CBCID consequently Smt. Ramawati and others filed petition for quashing the telex message. Thereafter, the Investigating Officer of CBCID moved a formal application before the Chief Judicial Magistrate, Auriaya for permission under Section 173 (8) of the Code for further investigation of the case. The Chief Judicial Magistrate, Auraiya vide order dated 29.6.2000 permitted the Investigating Officer of CBCID for further investigation of the case. Thereafter, the Investigating Officer of CBCID moved a formal application before the Chief Judicial Magistrate, Auriaya for permission under Section 173 (8) of the Code for further investigation of the case. The Chief Judicial Magistrate, Auraiya vide order dated 29.6.2000 permitted the Investigating Officer of CBCID for further investigation of the case. He by the same impugned order directed that the proceeding of criminal case arising out of the charge-sheet filed by the Investigating Officer of Civil Police shall remain stayed till the completion of investigation by the CBCID. The Hon'ble Division Bench of this court observed that in this case the order of further investigation by the CBCID has already been revoked by the government, therefore, the proceeding of the criminal case arising out of the charge-sheet submitted by the Investigating Officer of the Civil Police could not be stayed by the Chief Judicial Magistrate. The court, further observed that assuming that the case was under investigation by the CBCID even then the proceeding of the criminal case could not be stayed. The relevant observation of the Hon'ble Court finds place in para 10 of the judgment which is being extracted below: "..10.... It may be pointed out that even if an order for investigation by C.B.,CID is passed, the proceedings before a Court should not be stayed if cognizance has already been taken. This question was examined in Daya Shankar Singh V. State of U.P., wherein it was held that the proceeding in the trial should not be stayed indefinitely merely on the ground that an order for reinvestigation by C.B., C.I.D., has been made. Similar, view was taken in Julfikar Beg V. State. The C.J.M., Auraiya should, therefore, proceed with the case in accordance with law." 18. In the case of Bhopal and Others (supra), the Division Bench of this court following the law laid down by this Court in Daya Shankar Singh Vs. State of U.P. (supra) held that the court is not bound to stay the proceeding of a case merely on the ground that re-investigation by CBCID has been ordered. 19. The same view has been taken by the court in the case of Gulzar Ahmad & Ors (supra). 20. State of U.P. (supra) held that the court is not bound to stay the proceeding of a case merely on the ground that re-investigation by CBCID has been ordered. 19. The same view has been taken by the court in the case of Gulzar Ahmad & Ors (supra). 20. In view of the law laid by this court in the above cited cases, it is well settled that when a Magistrate takes cognizance of the offence/offences on the basis of charge-sheet submitted by the Investigating Officer and thereafter further investigation of the same case is entrusted to any other agency, the Magistrate is not bound to stay the proceeding of criminal case arising out of the charge-sheet submitted by the earlier Investigating Officer. 21. In this case, the Investigating Officer during the course of investigation collected the evidence and on the basis of evidence found, prima-facie, case in support of the offences under Sections 326, 302, 506 I.P.C. against the accused, consequently, he submitted impugned charge sheet against the accused on the basis of which the learned Chief Judicial Magistrate took cognizance of the offences and summoned the accused. I find neither any infirmity in the impugned charge sheet nor any illegality in the impugned order which do not call for any interference. The petition is devoid of any merit and is liable to be dismissed. 22. Accordingly, the petition is dismissed.