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2016 DIGILAW 3578 (ALL)

Abdul Fareed v. State of U. P.

2016-10-26

RAGHVENDRA KUMAR

body2016
JUDGMENT Raghvendra Kumar,J. 1. Heard learned counsel for the applicants, learned counsel appearing for opposite party no. 2 and learned A.G.A.for the State of U.P. 2. It has been submitted by learned counsel for the applicants that initially the charge sheet was filed under section 364 I.P.C.against the applicants in which they obtained bail order from the court. Thereafter the C.D.R.containing the details of the calls and SMS were filed and the court has taken cognizance under section 364-A I.P.C. 3. Learned counsel for the applicants/petitioners has placed reliance upon Vinay Tyagi vs. Irshad Ali @ Deepak & other reported in 2013 (1) JIC 677(SC). Relevant paras are reproduced (31 and 32) below : 31. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct ''further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code. 32. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code. 4. It has further been submitted that the C.D.R. contained calls details and the messages were earlier available on record but the same could not be taken note of as it is not in compliance of the section 65-B of the Evidence Act. 5. Learned counsel for the applicants/petitioners placed reliance upon the case in Civil Appeal No. 4226 of 2012 (Civil Appellate Jurisdiction in the Supreme Court of India) Anvar P.V. (s) vs. P.K.Basheer and others and referred to paragraphs 13 to 17 and 21 to 23. It has further been submitted that the irregularity has been committed by learned trial Court in taking note of the supplementary report and passing the impugned order. 6. Learned A.G.A.has submitted that the demand of ransom is a fact and the relevant extract of the messages has been filed in the shape of hard copy i.e. photocopy. The factum of demand of ransom can be adjudicated on the basis of the evidence. 7. Learned A.G.A.has further submitted that the observation made by learned Hon'ble Apex Court in paragraphs 13 to 17 and 21 to 23, are with respect to election petition wherein question of admissibility and the assessment of electronic evidence was considered and the principles were enunciated. It has no application in the instant case at this stage because in this case the trial has yet not proceeded and evidence has yet not been taken by the Court. It has no application in the instant case at this stage because in this case the trial has yet not proceeded and evidence has yet not been taken by the Court. Learned A.G.A.has further submitted that the scope of section 173 (8) and 156 Cr.P.C.has been considered by Hon'ble Apex Court in Vinay Tyagi's case (supra). 8. In the instant case, the court has taken the judicial note of call details and messages submitted by police and passed the cognizance order for the offence under section 364-A I.P.C. against the applicants/petitioners. 9. For argument sake, if it is conceded that if there is any irregularity in the cognizance order passed in reference to offence under section 364-A I.P.C.in terms of section 460-E of Code of Criminal Procedure the proceedings would not vitiate. More so, the summoning order under section 364-A has not been assailed before any competent Court. 10. The observation contained in the case law in Civil Appeal No. 4226 of 2012 Anvar P.V. (s) vs. P.K. Basheer and others is with respect to the appreciation of evidence led in the election petition. The facts of this case are entirely different. Even for the arguments sake if the principle enunciated in the aforesaid Ruling are taken to be applicable then it will be applicable after the evidence is taken on record with respect to any electronic documents. The provisions contained in the Evidence Act would automatically come into play with respect to electronic documents filed during the course of trial. 11. In Vinay Tyagi's case, the Hon'ble Apex Court has made an observation in paragraph 31 that the Power of the Magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. 12. In the light of observation contained in the Vinay Tyagi's case it can safely be discerned that the impugned order has been passed on the basis of the material placed before the Court. The Court has to take up the same on its face value and to prima facie draw an inference whether in its estimation there is sufficient ground to presume that the accused has committed the offence and there exists sufficient basis to proceed against him. 13. The Court has to take up the same on its face value and to prima facie draw an inference whether in its estimation there is sufficient ground to presume that the accused has committed the offence and there exists sufficient basis to proceed against him. 13. The trial has to proceed in accordance with law and if the accused applicants feel that there is no evidence against them, they can take recourse to the procedure by moving the appropriate application under section 227 of Cr.P.C. At this stage, while exercising jurisdiction under section 482 Cr.P.C.it cannot be held that the court below has committed any irregularity or illegality which may amount to the abuse of the process of the Court and may warrant inference by this Court. Further the question of admissibility of electronic evidence is to be considered by the Court at appropriate stage of trial. 14. In view of the aforesaid discussions, there appears no justification to invoke the jurisdiction under section 482 Cr.P.C. The petition is bereft of merit and is, accordingly, dismissed.