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2017 DIGILAW 484 (ALL)

Arun Pradeep Shukla v. State of U. P.

2017-02-09

PRABHAT CHANDRA TRIPATHI

body2017
JUDGMENT Prabhat Chandra Tripathi,J. Case called out in the revised list. Sri Yogesh Agrawal, learned counsel for the applicant and learned A.G.A. for the State are present. The instant application has been preferred by the applicant to challenge the legal validity of the charge-sheet No. 31 of 1999 dated 01.09.1999 relating to Case Crime No. 98 of 1988 F.I.R. No. 16 of 1988 dated 12.08.1988 C.B. No. 96 of 1999 under Sections 201/109/34/304 I.P.C., Police Station- Soraon, District- Allahabad. The charge-sheet is annexed as Annexure-1 to the application. 3. Learned counsel for the applicant has argued that in this matter accused person-Ram Dulare was produced before the learned Remand Duty Magistrate/ Lower Criminal Court, District-Allahabad on date 17.03.1988 in Crime No. 54 of 1988 under Sections 394/302 I.P.C. and Section 27 Arms Act, Police Station- Soraon, District- Allahabad. The Remand Duty Magistrate granted the judicial custody remand to the accused Ram Dulare w.e.f. 17.03.1988 to 31.03.1988. Thereafter, when the accused Ram Dulare was being escorted by the police personnel to the concerned jail, the accused person Ram Dulare became ill and medical aid was provided to him but it was of no avail and he died. It is vehemently impressed upon by the learned counsel for the applicant that no mention was made in the order dated 17.03.1988 of the learned Remand Duty Magistrate/ Lower Criminal Court, Allahabad about the illness of the accused person Ram Dulare which transpires that accused Ram Dulare was produced before the learned Remand Duty Magistrate/ Lower Criminal Court, Allahabad in a hale and hearty physical condition on date 17.03.1988. In other words, it is the argument of the learned counsel for the applicant that applicant- Arun Pradeep Shukla, who was the then In-charge of the Police Station- Soraon, District- Allahabad could not be held responsible for the subsequent event which happened after the order of grant of judicial custody remand to the accused Ram Dulare. It is next submitted that final report was submitted in this matter on date 01.07.1993. However, no judicial order could be passed on the aforesaid final report. It is also submitted by the learned counsel for the applicant that change of Investigating Agency is not permissible in law. It is next submitted that final report was submitted in this matter on date 01.07.1993. However, no judicial order could be passed on the aforesaid final report. It is also submitted by the learned counsel for the applicant that change of Investigating Agency is not permissible in law. On such submissions, learned counsel for the applicant has prayed that the proceedings of criminal case No. 8741 of 1991 (State vs. Arun Pradeep Shukla) under Sections 304/201/109/34 I.P.C., Police Station- Soraon, District Allahabad pending in the court of learned Chief Judicial Magistrate, Allahabad may be stayed and the charge-sheet of this case may be quashed. 4. Learned counsel for the applicant has cited the following rulings: - (i). K. Chandrasekhar etc. vs. The State of Kerala and others, 1998 (4) Supreme 374 Supreme Court of India. (ii). Harishchandra Prasad Mani and others vs. State of Jharkhand and another, JT 2007 (3) SC 229. 5. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 6. From the perusal of the record, it is evident that one accused, namely, Ram Dulare was granted judicial custody remand under Section 167 (2) Cr.P.C., 1973 in Case Crime No. 54 of 1988 under Sections 394/302 I.P.C. and Section 27 Arms Act, Police Station- Soraon, District- Allahabad on date 17.3.1988 by the then Remand Duty Magistrate/ Lower Criminal Court, Allahabad w.e.f. 17.03.1988 to 31.03.1988. It is also admitted that the accused person died while on the way to the Naini jail. Since this was a death of an accused person in the police custody, a magisterial enquiry was held by Sri Harendra Veer Singh the then Sub-Divisional Magistrate, Soraon in which the then Station Officer Sri Arun Pradeep Shukla was held solely responsible for causing the death of the accused person Ram Dulare. Thereafter, on the letter dated 6.4.1988 of the then District Magistrate, Allahabad, an F.I.R. was registered against the accused applicant Arun Pradeep Shukla. A brief mention of the Chik F.I.R. is required here. On date 16.3.1988 at 7: 30 P.M. a police party headed by the then Station Officer, Police Station- Soraon, Arun Pradeep Shukla, arrested the accused person Ram Dulare and one another accused person, namely, Hari. One illicit SBBL gun and nine cartridges were recovered from the possession of the accused person Ram Dulare. On date 16.3.1988 at 7: 30 P.M. a police party headed by the then Station Officer, Police Station- Soraon, Arun Pradeep Shukla, arrested the accused person Ram Dulare and one another accused person, namely, Hari. One illicit SBBL gun and nine cartridges were recovered from the possession of the accused person Ram Dulare. Accused Ram Dulare was produced before the Remand Duty Magistrate at about 6: 15 P.M. at the residence of Remand Duty Magistrate, who granted the judicial custody remand of the accused Ram Dulare along with three other accused persons. On the way near Katra crossing; a-bout of hicupps started to accused Ram Dulare who was taken to a private Doctor, Dr. B.K. Hitaisi who declared him 'brought dead'. After lodging rest of the two persons inside the Naini Jail police personnels who escorted the accused persons took the corpse of the accused Ram Dulare to mortuary of Swaroop Rani Hospital, Allahabad. This was entered into G.D. No. 42 on date 17.03.1988 at 10: 30 P.M. at Police Station- Soraon and on date 18.3.1988 at about 10: 30 A.M. inquest report was prepared at the mortuary of Swaroop Rani Hospital, Allahabad. The injuries which were found at the time of the inquest report were mentioned on date 19.3.1988 at about 12: 00 A.M. Autopsy was conducted by a team of doctors comprising of Dr. Nisar Ahmad, Dr. K.N. Singh of Tej Bahadur Sapru Hospital, Allahabad and Dr. A.K. Nigam of Moti Lal Nehru Hospital, Allahabad in which 13 injuries were mentioned upon the body of the deceased Ram Dulare and it was opined by the team of doctors that cause of death was due to aforementioned injuries which were inflicted 48 hours ago which corresponded to the time in between 12: 00 A.M. on date 17.3.1988 or night of 16.3.1988. It was mentioned in the magisterial enquiry that this proves the fact that after the arrest of the accused Ram Dulare on date 16.3.1988, he was beaten by the police personnel of police station Soraon by Lathi-Danda or some blunt object causing grievous injuries upon the body of Ram Dulare. It has been opined by the team of aforementioned three doctors who conducted the post-portem of the accused Ram Dulare that it could have been possible that accused Ram Dulare would have been in his senses and thereafter he succumbed to his injuries. It has been opined by the team of aforementioned three doctors who conducted the post-portem of the accused Ram Dulare that it could have been possible that accused Ram Dulare would have been in his senses and thereafter he succumbed to his injuries. It was also mentioned in the magisterial enquiry that since accused Ram Dulare was arrested by the then Station Officer and he was also the Investigating Officer of the case which was registered against the accused person Ram Dulare, hence Sri Arun Pradeep Shukla, the then Station Officer was solely responsible for causing death of accused person Ram Dulare. Magisterial enquiry report was examined by the then District Magistrate, Allahabad who put stamp of affirmation upon the magisterial enquiry report by passing a speaking and reasoned order and the then District Magistrate also concurred with the findings of the magisterial report and opined that death of the accused Ram Dulare occurred in police custody for which the then Station Officer Arun Pratap Shukla is solely responsible and the then District Magistrate sent a D.O. letter to the then S.S.P., Allahabad in which it was ordered that a case under Section 302 I.P.C. may be registered against Arun Pratap Shukla, the then Station Officer, Police Station- Soraon and effective legal action may be taken against him. The then District Magistrate further ordered that departmental action may also be taken as a fall out of this legal action and action taken report may also be brought to the notice of the then District Magistrate, Allahabad. 7. Upon such endorsement dated 6.4.1988 of the then District Magistrate, Allahabad, F.I.R. was registered against the accused-applicant Arun Pradeep Shukla. This transpires that F.R. No. 34 of 1993 dated 11.2.1993 was submitted by the local Civil Police of District Allahabad in the F.I.R. dated 17.3.1988. 8. Later on, the investigation was performed by the Crime Branch (Criminal Investigation Department) of Uttar Pradesh Police, which submitted the aforementioned charge-sheet against the accused-applicant Sub-Inspector Arun Pradeep Shukla the then Station Officer, Police Station- Soraon along with three constables of Uttar Pradesh Police also, which is pending before the Court of the learned Chief Judicial Magistrate, Allahabad. 9. 8. Later on, the investigation was performed by the Crime Branch (Criminal Investigation Department) of Uttar Pradesh Police, which submitted the aforementioned charge-sheet against the accused-applicant Sub-Inspector Arun Pradeep Shukla the then Station Officer, Police Station- Soraon along with three constables of Uttar Pradesh Police also, which is pending before the Court of the learned Chief Judicial Magistrate, Allahabad. 9. The charge-sheet No. 31 of 1999 dated 01.09.1999 relating to Case Crime No. 98 of 1988 F.I.R. No. 16 of 1988 dated 12.08.1988 C.B. No. 96 of 1999 under Sections 201/109/34/304 I.P.C., Police Station- Soraon, District- Allahabad submitted by the Crime Branch (Criminal Investigation Department) of Uttar Pradesh Police has vividly mentioned that in the post-mortem conducted by the team of aforementioned three doctors and prepared by Dr. Nisar Ahmed, 18 injuries were found on the dead body of the accused person Ram Dulare. Out of which injury nos. 1 and 2 caused his death. Injury nos. 1 and 2 were caused by rifle butts and these injuries were caused by the then Station Officer (Sub-Inspector) Arun Pradeep Shukla; constable Radha Charan and constable Babu Lal Maurya. The then Head Mohurrir Devi Prasad Shukla did not care to get the accused person prisoner Ram Dulare (deceased) medically examined and also paid no heed towards the health and well being of the accused person Ram Dulare (deceased) at the relevant period of time. 10. Learned counsel for the accused-applicant has cited two above mentioned rulings of the Supreme Court of India. Due to factual and legal distinction of the present case, the accused applicant may not get any benefit by the aforementioned rulings cited by the learned counsel for the applicant. 11. Section 173 (8) of The Code of Criminal Procedure, 1973 is quoted verbatim as follows: - "173 (8). Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 12. When a power under sub-section (8) of Section 173 is exercised, the court ordinarily should not interfere with the statutory powers of the investigating agency. The court cannot issue directions to investigate the case from a particular angle or by a particular agency; Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 . 13. The "police report" (result of investigation under Chapter XII of the Code of Criminal Procedure) is a conclusion that an investigating officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance there upon under Section 190(1)(b) of the Code and to proceed with the case for trial, and it cannot rely on the investigation or the result thereof; Kaptan Singh v. State of Madhya Pradesh, (1997) 4 Supreme 211 . 14. Power of police to conduct further investigation, even after laying final report , is recognised under Section 173(8); Sri B.S.S.V.V.V. Maharaj v. State of Uttar Pradesh, 1999 Cr LJ 3661 (SC). 15. The charge-sheet is the foundation upon which the Court can take cognizance. The edifice of the trial rests upon this foundation but the result does not. The edifice may stand or it may crumble down. It depends upon the outcome or conclusion of the trial. 16. In the present case, the magisterial enquiry was held by the officer of the rank of Sub-Divisional Magistrate and the then District Magistrate, Allahabad has put a stamp of affirmation upon it by concurring with the findings which were recorded in the magisterial enquiry report and the then District Magistrate, Allahabad, thereafter, ordered for registering the case under Section 302 I.P.C. against the present accused applicant Arun Pradeep Shukla. After this, legal machinery was put into motion and it is suffice to say that charge-sheet was submitted against the accused-applicant Sub-Inspector Arun Pradeep Shukla. 17. A letter No.2239/ XV dated 01.09.2016 sent by the then learned District Judge, Allahabad to the Registrar General, High Court, Allahabad mentions that the charge-sheet was registered on date 07.01.1999 in the Court and it is pending since then in the Court of learned Chief Judicial Magistrate, Allahabad. 18. This Court does not find any legal, cogent or valid reason to interfere in this order of cognizance taken by the court seized with the criminal judicial territorial jurisdiction at this stage. 19. 18. This Court does not find any legal, cogent or valid reason to interfere in this order of cognizance taken by the court seized with the criminal judicial territorial jurisdiction at this stage. 19. The application of accused applicant- Arun Pradeep Shukla deserves to be dismissed. 20. The application is, accordingly, dismissed. 21. The learned Chief Judicial Magistrate, Civil and Sessions Court, Allahabad is directed to proceed with the case and complete the proceedings of the committal within a period of one month from the date of this order. The learned Registrar General, High Court Allahabad is hereby directed to communicate this order to the learned Chief Judicial Magistrate, Civil and Sessions Court, Allahabad through Fax forthwith. Let a compliance report be also submitted thereafter by the learned Chief Judicial Magistrate, Civil and Sessions Court, Allahabad.