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2017 DIGILAW 463 (JK)

Rohit Gupta v. State

2017-07-27

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Mr. Abhinav Sharma, learned counsel appearing for the petitioner has stated that FIR No.47 of 2012 u/s 452/323/RPC and 3/25 Arms Act was registered on 26th of May, 2012 but the petitioner was taken into custody on 25th of May, 2012. In support of his arguments, he has relied upon the bail application filed by the petitioner on 26.5.2013 before the Court of learned Chief Judicial Magistrate, Jammu, wherein it has been categorically stated that petitioner was taken into custody on 25th of May, 2012; police report filed by the concerned police before the Court of learned Chief Judicial Magistrate, Jammu also clearly reveals that date of occurrence is 26th of May, 2012 at about 10.12 p.m. It has further been stated that a false and frivolous case was registered on behest of respondent no.1 (Dy.S.P/SDPO) of concern of area, because he was I/O in case FIR No. 27/1997 u/s 5(2) of Prevention of corruption Act lodged against the father of petitioner Hem Raj; and that case was dismissed by court of special judge Anticorruption court, Jammu on 17.9.2010 and father of petitioner has filed a defamation against respondent no.4. In this way case petitioner has falsely been implicated. 2. The charge framed also suffers from non application of mind as date of occurrence is not in consonance with FIR and statements recorded under section 161 Cr.P.C. 3. Whereas AAG has stated that there is no illegality in the order of framing charge. 4. I have gone through the challan and statements of complainant as well as other witnesses recorded under Section 161 Cr.P.C. From perusal of challan, it reveals that on written complaint, FIR was lodged; in complaint date of occurrence has been mentioned as 26.5.2012; in the statements initially recorded of witnesses u/s 161 Cr.P.C during investigation, the date of occurrence has been mentioned as 26.5.2012. But thereafter again statements (Tatima) of same witnesses have been recorded u/s 161 Cr.P.C and that of complainant u/s 164-A Cr.P.C. In these statements date of occurrence has been mentioned as 25.5,2012. But fact remains same that in FIR which has been lodged on the basis of written complaint, the date of occurrence has been mentioned as 26.5.2012. 5. The Court below on 23.8.2013 has passed order with regard to framing of charge, which is also impugned in the petition. But fact remains same that in FIR which has been lodged on the basis of written complaint, the date of occurrence has been mentioned as 26.5.2012. 5. The Court below on 23.8.2013 has passed order with regard to framing of charge, which is also impugned in the petition. But while writing the order, the Magistrate has mentioned no date and timing of occurrence. In terms of Section 222 of Cr.P.C., correct date of occurrence and place are necessary to be mentioned for framing of the charge. As per counsel for petitioner, court is not sure as to on which date occurrence has taken place. Form the perusal of order, it is further evident that Magistrate has not discussed the ambiguity and contradiction with regard to date of occurrence mentioned in written complaint, FIR, in the initial statements of witnesses and subsequent statements of same witnesses during investigation. 6. Learned counsel for petitioner has also argued that once a statements of witnesses are recorded U/S 161 Cr.P.C., then again statements of same witnesses, whether u/s 161 Cr.p,c or 164-A Cr. P.C cannot be recorded with regard to the same facts. Because as per law further statements of witnesses can only be recorded, when new facts come during investigation; but not to correct illegality done in investigation. This argument is also forceful and correct. 7. So, in my considered opinion, this controversy can be resolved by remanding the matter to the trial court for rehearing on the question of charge/discharge. 8. Learned counsel for petitioner has also brought to knowledge of this court that insertion has been made in the challan, produced by the concerned police, when it was in custody of Court. In one of copy of the challan, which has been annexed in this petition, name of the father of the accused has been mentioned as Hans Raj while in another copy, it is reflected as Hem Raj. In charge sheet form, it has also been mentioned as Hans Raj; in original challan some overwriting has been done and name of Hans Raj has been changed into Hem Raj. 9. I have gone through the original challan and copies attached with this petition. The assertion made by counsel in this regard is correct. 10. In charge sheet form, it has also been mentioned as Hans Raj; in original challan some overwriting has been done and name of Hans Raj has been changed into Hem Raj. 9. I have gone through the original challan and copies attached with this petition. The assertion made by counsel in this regard is correct. 10. In this way, some forgery has been committed in challan when it was in custody of court of law; it is serious matter; this aspect of the matter is required to be enquired. In case any involvement of I/O and court staff is found, Court below shall proceed against them under law. 11. In the given facts and circumstances of the case, order framing of charge is set aside and Court below is directed to re-hear the matter on the question of charge/discharge. 12. Petitioner is directed to appear before the trial court on 10th of August, 2017. 13. Record be sent back along with this order.