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2018 DIGILAW 2117 (ALL)

Channa Devi @ Bachna v. State Of U. P.

2018-10-04

KARUNA NAND BAJPAYEE

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JUDGMENT : Karuna Nand Bajpayee, J. This application U/S 482 Cr.P.C. has been filed seeking quashing of proceeding in Case No. 239 of 2004, State versus Indramani Dube and others, arising out of Case Crime No. 64 of 2004, under Sections 498A, 323, 504, 506 IPC read with Section 3/4 of Dowry Prohibition Act and Section 307 IPC, P.S. Sarai Memrej, District Allahabad pending in the court of Judicial Magistrate-I, Allahabad and also staying the further proceeding of the aforesaid case. Apart from the aforesaid prayer, multiple prayers have been further made in so much confounded language that despite the best efforts this Court could not deduce or articulate any meaning out of it and it is not possible for this Court to reproduce the same in any meaningful manner. Therefore, the hearing of this application is being confined to the prayer in as much as it seeks quashing of the proceeding of the case at hand. 2. Heard learned counsel for the applicants, learned AGA and perused the record. 3. It appears that initially it was decided by the Investigating Officer to submit charge sheet under Sections 498A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act in this case. This appears to be a decision taken on 18.10.2004.The charge sheet was accordingly prepared also. Subsequently, as it transpires from Annexure-4 (Page-30) that on 3.12.2004 a further case diary entry was made through which Section 307 IPC was also added in the wake of the allegations that were made to the effect that kerosene oil had been sprinkled upon the victim and then she was set ablaze by accused. A supplementary case diary parcha was also issued mentioning all these facts on 5.12.2004 in the case diary. Resultantly it also appears that the additional charge under Section 307 IPC was also mentioned or incorporated in charge sheet which had hereto contained only lesser offences. It further transpires from the record that cognizance in the case was taken on 4.3.2005. It is quite clear that addition of Section 307 IPC appears to have been done much prior before the cognizance of the case was taken by the court. It appears that in all probability the police papers were within the realm and custody of the police officials till then. It is quite clear that addition of Section 307 IPC appears to have been done much prior before the cognizance of the case was taken by the court. It appears that in all probability the police papers were within the realm and custody of the police officials till then. The time when the chargesheet was brought to be looked into by the court, Section 307 IPC had already been imposed upon the accused persons in the wake of the allegations made by the complainant which were to the effect of making an attempt to cause her death by setting her ablaze. 4. The grievance as has been expressed by the learned counsel for the applicants before the Court appears to be that once the earlier decision was taken by the Investigating Officer to submit charge sheet only under Sections 498A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act, then a supplementary charge sheet ought to have been submitted in the court separately under Section 307 IPC. According to the counsel, it was the only course open for the purpose of adding any new charge and it was a very irregular step taken by the Investigating Officer to add Section 307 IPC in the same old charge sheet which had been earlier prepared without containing Section 307 IPC. Contention of learned counsel for the applicants is that it should be deemed a manipulation and in its consequence therefore, it shall go to vitiate the entire proceeding. An additional further argument raised by the counsel is that the subsequent addition of Section 307 IPC and the corresponding entry made in the G.D. or C.D. regarding the addition of the section, will be tantamount to lodging a second FIR in the case which is clearly impermissible in law. For that reason also, the submission of such charge sheet and the cognizance taken by the court on such charge sheet containing Section 307 IPC, will be a proceeding bad in the eyes of law and, therefore, the entire proceedings should be quashed as they emanate from the same gross illegality. 5. For that reason also, the submission of such charge sheet and the cognizance taken by the court on such charge sheet containing Section 307 IPC, will be a proceeding bad in the eyes of law and, therefore, the entire proceedings should be quashed as they emanate from the same gross illegality. 5. This Court has cogitated upon the submissions made by the learned counsel for the applicants in the light of the record of the case but feels constrained to observe that even though a better course could have been adopted by the police but whatever has been done by the Investigating Officer cannot be allowed to vitiate the proceeding of the court. The addition of Section 307 IPC in the charge sheet does not appear to have been done after the same was submitted in the court. It was a police paper in the custody of the Investigating Officer itself. A better course would have been not to disturb the earlier charge sheet but to file a second charge sheet containing the additional Section 307 IPC. But it appears that the Investigating Officer has acted not wisely and may be even imprudently seeing nothing wrong in adding Section 307 IPC in the same charge sheet as the paper was still within the custody of the police. It appears that the police thought it to be a superfluous exercise to file a supplementary charge sheet in the wake of the situation that the earlier charge sheet had not been sent to the court till then and was sent much later date as is evident from the date of the cognizance taken by the Court i.e. 4.3.2005. It is pertinent to note that addition of Section 307 IPC has been done on 3.12.2004 itself. The unwise conduct of the Investigating Officer does not appear to be such which may invalidate the charge sheet itself or which may at all be said to be such that may have the potentiality of vitiating the validity of the cognizance taken in the case. The cognizance order well stands its ground and in the judicial estimate of this Court the consequent proceeding also remain unvitiated. 6. The cognizance order well stands its ground and in the judicial estimate of this Court the consequent proceeding also remain unvitiated. 6. So far as the submission of learned counsel for the applicants that the trial court had at some stage issued a notice to the Investigating Officer to explain his conduct as to how and under what circumstances Section 307 IPC was added by him in the same old charge sheet is concerned, it may be observed that the matter is within the realm of the trial court and the court is always free to make whatever queries it may deem fit to raise in order to arrive at its own conclusion. There is nothing wrong if the trial court thought it proper to seek explanation from the Investigating Officer. Learned counsel for the applicant has not been able to apprise the court as to what happened to the explanation of the Investigating Officer. Therefore, this Court does not propose to pursue this aspect of the matter any further. An additional argument was also reluctantly raised by the learned counsel for the applicants that actually it was not a case in which Section 307 IPC should have been rightly imposed upon the accused. So far as this contention is concerned, it goes without saying that as the charge has not been framed so far, such a contention can always be raised at a proper stage at the time of framing of the charge. It is for the trial court to look into this aspect of the matter and decide whether the charge under Section 307 IPC ought to be framed or not. This Court does not propose to make any observation in that regard at this stage as it might cause prejudice to either side and impair the prospects of an impartial dispassionate verdict by the trial court in this regard. 7. This Court also does not see any good reason to direct further investigation into the case as has been prayed by the counsel. 8. With regard to the submission made by the learned counsel for the applicants that the entry made in the G.D. or C.D. adding Section 307 IPC should be treated as registration of the second FIR, this Court wants to observe only this much that the argument of the learned counsel for the applicants is quite specious and is not at all tenable. Every day during the course of investigation new sections are added by the police from time to time depending upon the facts and circumstances of the case as they may emerge. Every day there is some NCR registered for committing non-cognizable offences but when the fracture is found on the victim, graver sections are added in the case during investigation itself. Addition of graver section does not amount to registration of another FIR and, therefore, the argument as has been raised at the bar can simply not be accepted. 9. In the last the counsel has submitted that the applicants desire to seek their discharge and for that a liberty may be granted to him. 10. In this regard it may be observed that under the statutory scheme of law there is a stage where the Court decides upon the appropriateness of framing the charge against the accused after hearing them or pass order of discharge. If under appropriate section at appropriate stage the applicants move before the court below seeking their discharge it is expected that the court shall adjudicate upon the same in accordance with law. For this purpose no additional judicial order is required. 11. With the aforesaid observations, the application is disposed off.