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2013 DIGILAW 1955 (ALL)

Shivswaroop v. State of U. P.

2013-07-26

RAVINDRA SINGH

body2013
Ravindra Singh, J. Heard Sri Daya Shanker Mishra, Sri Chandrakesh Mishra, learned Counsel for the applicant, learned A.G.A. for the State of U.P. 2. This application has been moved on behalf of the applicant Ram Swaroop with a prayer to quash the charge-sheet No. 161-A of 2008 dated 2.11.2008 in Case Crime No. 157 of 2008 under sections 147, 148, 149, 323, 504, 506, 307, 302, 34 and 120-B, I.P.C., Police Station Nagphani, District Moradabad and to quash the order dated 27.11.2008 by which the learned C.J.M. Moradabad has taken the cognizance in Criminal Case No. 10603/9 of 2008 and to quash all the proceedings arising out of the above mentioned charge-sheet dated 2.11.1008 against the applicant. 3. 3. The facts, in brief, of this case are that FIR of case crime No. 157 of 2008 under sections 147, 148, 149, 323, 504, 506 and 307 I.P.C. has been lodged by Krishna Kumar O.P. No. 2 at Police Station Nagphani, District Moradabad on 30.4.2008 at 10.00 P.M. in respect of the incident allegedly occurred on 30.4.2008 at about 8.30 P.M. The FIR has been lodged against Pavitra Kumar Advocate, Satyavir Kumar, Milan Kumar, Anil Kumar alias Babloo, Pankaj alias Amit and Bobby alleging therein that one Amod, Uncle of the first informant, was admitted in Sai Hospital on 30.8.2008, the father of the first informant, i tamely, Raj Kumar, the first in­formant's mother Smt. Raj Kumari and his uncle Madan Pal Singh had gone to the hospital to see Amod, thereafter they were returning from the hospital, the mother and father of the first informant were on a Rickshaw, which was followed by another rickshaw in which the first informant his uncle Madan Pal were sitting, as soon as the rickshaw of father and mother of the first informant reached infront of the floor mill of Ram Autar where the accused Pavitra Kumar Advocate, Satyavir Kumar, Milan Kumar, Anil Kumar alias Babloo, Pankaj alias Amit and Bobby were already sitting where the arrival of father and mother of the first informant, they discharged the shots by their country made pistols at about 8.30 P.M., consequently the father and mother of the first informant fell down on the road, the first informant and his uncle Madan Pal Singh in a perturbed condition hide themselves in adjoining the lane of floor mill and the Rickshaw puller leaving the rickshaw fled away from the place of incident, the shops were closed, panic was created and due to fear the persons entered into their houses and nobody remained on the road. The hue and cry was made then the accused persons hurling the abuses, extending the threats and brandishing the country made pistol fled away towards Bungalow Gaon Chauraha. The first informant with the help of other persons brought his mother and father to Govt. The hue and cry was made then the accused persons hurling the abuses, extending the threats and brandishing the country made pistol fled away towards Bungalow Gaon Chauraha. The first informant with the help of other persons brought his mother and father to Govt. Hospital, on way to hospital, the jeep of police station Nagphani reached there in which the first informant, his mother and father in injured condition were brought to Government Hospital from where the mother and father of the first informant shifted to Sai Hospital and thereafter the father of the first informant was referred to Delhi. At the time of lodging of the FIR, mother and father of the first informant were injured but they were surviving, subsequently the injured Raj Kumar, father of the first informant succumbed to his injuries, thereafter the offence under section 302 I.P.C. was also added. 4. In the present case, the first charge-sheet No. 161/08 dated 30.7.2008 has been submitted against accused Pavitra Kumar Advocate, Satyavir Kumar, Milan Kumar, Anil Kumar alias Babloo, Pankaj alias Amit and Bobby on which the learned Incharge C.J.M. Moradabad took the cognizance on 8.8.2008 but the investigation against the applicant was pending and the supplementary charge-sheet against applicant bearing charge-sheet No. 161-A of 2008 dated 2.11.2008 has been submitted on which the learned C.J.M. took the cognizance and summoned the applicant vide order dated 27.11.2008. Being aggrieved from the charge-sheet No. 161-A of 2008 dated 2.11.2008 and the order dated 27.11.2008 the present application has been filed with a prayer to quash the above mentioned charge-sheet and the order dated 27.11.2008. 5. Being aggrieved from the charge-sheet No. 161-A of 2008 dated 2.11.2008 and the order dated 27.11.2008 the present application has been filed with a prayer to quash the above mentioned charge-sheet and the order dated 27.11.2008. 5. It is submitted by learned Counsel for the applicant that applicant is not named in FIR as accused even the charge-sheet No. 161 of 2008 dated 30.7.2008 has not been submitted against the applicant, it has been submitted against the accused Pavitra Kumar Advocate, Satyavir Kumar, Milan Kumar, Anil Kumar alias Babloo, Pankaj alias Amit and Bobby on which the cognizance has been taken by in charge C.J.M. Moradabad on 8.8.2008 but the supplementary charge-sheet bearing No. 161A of 2008 dated 2.11.2008 has been submitted against the applicant with the help of section 120-B I.P.C. whereas he was no credible evidence collected by I.O. disclosing the commission of the offence punishable under section 120-B I.P.C. The supplementary charge-sheet dated 2.11.2008 has been filed having no co­gent evidence, it has been filed with ulterior motive. 6. It has been further submitted that learned Counsel for the applicant that on the basis of charge-sheet dated 30.7.2008 bearing No. 161 of 2008 learned C.J.M. has already taken the cognizance on 8.8.2008. According to the law cognizance is taken of the offence and not of the accused but supplementary charge-sheet being No. 161-A of 2008 dated 2.11.2008 supported by it has against the applicant learned Magistrate has taken the cognizance again on 27.11.2008 once the cognizance has been taken in respect of the offence, it may not be taken again on the basis of sup­plementary charge-sheet. 7. It is further submitted by learned Counsel for the applicant that on the basis of the charge-sheet dated 30.7.2008 bearing No. 161 of 2008, the learned C.J.M. Moradabad has also taken the cognizance on 8.8.2008. According to the law the cognizance is taken of the offence and not of the accused. But on supplementary charge-sheet bearing No. 161-A of 2008 dated 2.11.2008. Once the cognizance has been taken in respect of the offence, it may not be taken again on the basis of supplementary charge-sheet submitted against the particular person process may be issued against the accused. The second cognizance to offence is barred by the law. The learned C.J.M. Moradabad has committed the manifest error by taking second cognizance on the supplementary charge-sheet vide order dated 27.11.2008. 8. The second cognizance to offence is barred by the law. The learned C.J.M. Moradabad has committed the manifest error by taking second cognizance on the supplementary charge-sheet vide order dated 27.11.2008. 8. It is further submitted that there was no need of submitting the supplementary charge-sheet because at the stage of the trial, in case the Trial Court is satisfied that on the basis of the evidence adduced the applicant has participated in commission of the alleged offence, he can be summoned to face the trial in exercise of the powers conferred under section 319 Cr.P.C. 9. It is further submitted that the impugned order dated 27.11.2008 by which the learned C.J.M., Moradabad has taken the cognizance and summoned the applicant is not a reasoned order, it has been passed in a routine manner without applying the judicial mind, therefore, it is a illegal order. 10. In reply of the above contention, it is submitted by learned A.G.A. that in the present case the applicant is not named in the FIR. Six co-accused are named in FIR. From the charge-sheet dated 30.7.2008, it has been clearly mentioned that during investigation the offence punishable under section 120-B IPC has been added against the applicant Shiv Swaroop and the charge-sheet against the co-accused whowere named in the FIR under sections 147, 148, 149, 323, 504, 506, 307, 302 and 34 IPC has been submitted. According to the charge-sheet dated 30.7.2008 the investigation against the applicant Shiv Swaroop was pending under section 120-B IPC. Subsequently the supplementary charge-sheet has been submitted only against the applicant Shiv Swaroop under sections 147, 148, 149, 323, 504, 506, 307, 302, 34 and 120-B, IPC. In the present case the investigation was pending against the applicant and after completing the investigation the supplementary charge-sheet has been submitted against the applicant only. It is not a case in which the charge-sheet has been submitted in exercise of power conferred under section 173( 8) Cr.P.C. In the present case at the time of the submission of the charge-sheet dated 30.7.2008 bearing No. 161 of 2008 which was submitted against the six co-accused persons, the investigation was not closed. But according to the charge-sheet dated 30.7.2008 the investigation against the applicant under section 120-B IPC was pending. But according to the charge-sheet dated 30.7.2008 the investigation against the applicant under section 120-B IPC was pending. The learned C.J.M. Moradabad has not committed any error in taking the cognizance of the charge-sheet dated 2.11.2008, without taking the cognizance and perusing the same the process against the applicant may not be issued. The learned C.J.M. Moradabad was under obligation to peruse the case diary for taking the cognizance and summoning the applicant to face the trial. The learned C.J.M. Moradabad has not committed any error in passing the order dated 27.11.2008 because the material collected by the I.O. was prima fade disclosing the offence punishable under section 120-B IPC against the applicant. The C.J.M. Moradabad was also empowered not to take the cognizance in case he was not satisfied with material collected by the I.O. during investigation was not prima facie disclosing the commission of the offence punishable under section 120-B IPC or there was not sufficient material to provide further against the applicant. In the present case the material collected by the I.O. during investigation was prima facie disclosing the commission of the offence. The charge-sheet No. 161 of 2008 dated 30.7.2008 was submitted against the other co-accused persons, it was not submitted against the applicant but the reference showing the involvement of the applicant under section 120-B IPC was given therein. The Investigating Officer has not committed any error in submitted the charge-sheet No. 161-A of 2008 dated 2.11.2008 against the applicant because the charge-sheet in parts may be submitted against the accused persons. The cognizance taken by learned C.J.M. Moradabad on the supplementary charge-sheet No. 161-A of 2008 dated 2.11.2008 is with regard to the offence punishable under section 120-B IPC in which the applicant has been mainly charge-sheeted. The learned C.J.M. Moradabad has taken the cognizance of the offence punishable under sections 147, 148, 149, 323, 504, 506,307, 302 and 34 IPC in which the co-accused Pavitra Kumar, Satveer Kumar, Milan Kumar, Anil Kumar @ Babloo, Pankaj @ Amit and Bobby were charge-sheeted. The learned C.J.M. Moradabad vide order dated 27.11.2008 has taken the cognizance and summoned the applicant for the offence punishable under sections 120-B, IPC read with sections 147, 148, 149, 323, 504, 506, 34, 307 and 302 IPC. The learned C.J.M. Moradabad vide order dated 27.11.2008 has taken the cognizance and summoned the applicant for the offence punishable under sections 120-B, IPC read with sections 147, 148, 149, 323, 504, 506, 34, 307 and 302 IPC. In the present case the cognizance has not been taken by the learned Magistrate concerned in exercise of powers conferred under section 190-A( b) which clearly shows that the learned C.J.M. Moradabad may take the cognizance of any offence. In such circumstances, it may not be said that learned C.J.M. Moradabad has committed any error in taking the cognizance of the offence punishable under section 120-B, IPC on the basis of the supplementary charge-sheet No. 161-A of 2008 dated 2.11.2008 submitted against the applicant. The provision of section 319 Cr.P.C. may not be hurdled because the investigation against the applicant was already pending at the time of the submission of the charge-sheet against other co-accused persons. 11. The present application is devoid of merits, accordingly it is dismissed. Application Dismissed.