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2019 DIGILAW 1479 (ALL)

Nand Lal Verma v. State of U. P.

2019-05-30

SANJAY KUMAR SINGH

body2019
JUDGMENT : Sanjay Kumar Singh, J. Case called out in the revised list. Sri N.D. Shukla, learned counsel for the applicants and Sri N.D. Rai and Sri Virendra Kumar Singh, learned Additional Government Advocates for the State of U.P./opposite party no.1 are present. No one is present on behalf of the opposite party no.2. 2. It is contended by the learned counsel for the applicants that the opposite party no.2 (Bare Lal) of this case is also the applicant no.1 in connected Application under Section 482 Cr.P.C. No. 28032 of 2008, therefore, he is very much aware about the present case and after granting interim stay order dated 30.6.2008 in this case, the opposite party no.2 of this case has also preferred Application under Section 482 Cr.P.C. No. 28032 of 2008, but no counter affidavit has been filed by the opposite party no.2 (Bare Lal) in this case. 3. It is further submitted by the learned counsel for the applicants that this case is pending before this Court since 2008 but on account of non-appearance of learned counsels appearing in connected Application under Section 482 Cr.P.C. No. 28032 of 2008 final hearing of the present case could not take place. Recently, this case was listed on 22.5.2019 and 29.5.2019 but on account of non-appearance of learned counsels appearing in aforesaid connected Application, case was adjourned by this Court on 22.5.2019 and 29.5.2019. Orders passed on the aforesaid dates are reproduced herein-below:- (i) Order dated 22.5.2019 "Case called out in the revised list. Sri N.D. Shukla, learned counsel for the applicants and learned AGA for the State are present. It is submitted by learned counsel for the applicants that the opposite party no.2 in Application under Section 482 Cr.P.C. No. 16160 of 2008 is also applicant no.1 in Application under Section 482 Cr.P.C. No. 28032 of 2008, therefore, he is very much aware about the present case but till date no counter affidavit has been filed in this case. Since, in the connected matter Application under Section 482 Cr.P.C. No. 28032 of 2008, no one is present on behalf of the applicants and opposite party no.2, therefore, it would be appropriate to list this case in the next cause list." (ii) Order dated 29.5.2019 "Case called out in the revised list. Since, in the connected matter Application under Section 482 Cr.P.C. No. 28032 of 2008, no one is present on behalf of the applicants and opposite party no.2, therefore, it would be appropriate to list this case in the next cause list." (ii) Order dated 29.5.2019 "Case called out in the revised list. Sri N.D. Shukla, learned counsel for the applicants and learned AGA for the State are present but no counsel appearing in connected Application under Section 482 Cr.P.C. No. 28032 of 2008 are present except learned AGA for the State. It is contended by Sri N.D. Shukla, learned counsel for the applicants that on account of non-appearance of counsel appearing in the connected matter Application under Section 482 Cr.P.C. No. 28032 of 2008, his case is not being decided, though the matter is pending since 2008 before this Court. On the request made by Sri N.D. Shukla, learned counsel for the applicants, put up this case tomorrow for hearing. Sri N.D. Shukla shall inform other counsels appearing in the connected matter about this order in writing." 4. Today, Sri N.D. Shukla, learned counsel for the applicants filed a supplementary affidavit dated 30.5.2019 mentioning that despite the order dated 29.5.2019 of this Court, the other counsels appearing in connected matter of this case have refused to accept the notice to appear in the matter. The contents of paragraph nos. 3 and 4 of the said affidavit sworn by Devendra Kumar Pandey (clerk of learned counsel for the applicants) are reproduced herein-below:- "3. That, in pursuance of this Hon'ble Court order's dated 29.5.2019, the deponent prepared the information notice and went to seat of Sri Vijay Shyam Bhaskar, Advocate, Counsel for the opposite party no.2 i.e. on the same day 29.5.2019 at 1.00 P.M., but Shri Vijay Shyam Bhaskar, Advocate, refused to accept notice and the deponent also got contacted through his Mobile Phone No. 9565557731 to both the counsel Shri Vijay Shyam Bhaskar, Advocate, and Shri N.D. Shukla and Shri Vijay Shyam Bhaskar, Advocate, said he will not accept the notice, because he was no instruction. 4. That, for kind perusal of this Hon'ble Court the deponent is filing the photocopy of the information slip dated 29.05.2019, over which he has return "refuse to accept notice". 4. That, for kind perusal of this Hon'ble Court the deponent is filing the photocopy of the information slip dated 29.05.2019, over which he has return "refuse to accept notice". For kind perusal of this Hon'ble Court photocopy of the information slip dated 29.05.2019 containing the refusal is being filed herewith and marked as Annexure No. SA-1 to this affidavit." 5. Under the circumstances, as mentioned above, this Court feels that if the said facts are correct, the such conduct is against the professional ethics, dignity and decorum of the Court. It is very painful that erosion in professional ethics is being occurred in this noble profession day by day, therefore, such practice should not be permitted to perpetuate. In view of above, considering the fact that the present case is pending since, 2008, this Court is of the view that hearing of this case is not liable to be adjourned on the ground that counsels appearing in connected matter are not inclined to argue their case. Since, no one is present on behalf of the applicants in connected Application under Section 482 Cr.P.C. No. 28032 of 2008, therefore, said application is delinked from this application. 6. This application under Section 482 Cr.P.C. has been filed by the applicants, Nand Lal Verma, Pramod Kumar Verma, Ravi Kant Verma and Dilip Kumar Verma with a prayer to quash the impugned charge-sheet no. 35 of 2008 dated 29.5.2008 arising out of Case Crime No. 183A of 2006 and proceedings of criminal case no. 1768 of 2008 (State Vs. 6. This application under Section 482 Cr.P.C. has been filed by the applicants, Nand Lal Verma, Pramod Kumar Verma, Ravi Kant Verma and Dilip Kumar Verma with a prayer to quash the impugned charge-sheet no. 35 of 2008 dated 29.5.2008 arising out of Case Crime No. 183A of 2006 and proceedings of criminal case no. 1768 of 2008 (State Vs. Bholanath and others), under Sections 395, 397, 307, 452, 323, 504, 506 IPC and Section 3(1)10 of S.C./S.T. Act, Police Station Suriyawan, District - Bhadohi pending in the court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur and to quash the impugned order dated 17.6.2008, whereby the Magistrate concerned took cognizance against the four charge-sheeted accused persons, namely Bholanath Verma, Vijay Kumar Verma, Anil Kumar Verma and Sashikant @ Badri as well as against four non-charge-sheeted accused persons, namely Nand Lal Verma, Pramod Kumar Verma, Ravi Kant Verma and Dilip Kumar Verma (who are the applicants in this application) by adding some more sections 452, 395, 397, 307 IPC in addition to Sections 323, 504, 506 IPC and Section 3(1)10 of S.C./S.T. Act and allowed the application dated 17.6.2008 of the informant with the direction to the office to produce the charge-sheet before him after adding the name of aforesaid four non charge-sheeted accused and additional sections and issued summons accordingly. 7. Filtering out unnecessary details, the basic facts for the purpose of this case are that on 16.4.2006 Anil Kumar Verma lodged FIR against the Badelal (opposite party no.2), Achche Lal and Shitla Prasad registered as case crime no. 183 of 2006, under Sections 323, 504, 506, 324 and 452 IPC at Police Station Surayawan, District Bhadohi, in which, the Investigating Officer after investigation submitted charge-sheet dated 13.5.2006, on which, ACJM concerned took cognizance on 25.5.2006 and the said case was registered as Case No. 1083 of 2006 before the Judicial Magistrate-I, Bhadohi Gyanpur. 8. Thereafter, on 27.2.2008, the opposite party no.2 lodged cross FIR after one year nine months and ten days with regard to alleged incident dated 16.4.2006 against eight accused persons including the applicants, registered as Case Crime No. 183A of 2006 under Sections 395, 397, 307, 452, 323, 504, 506 IPC and Section 3(1)10 of S.C./S.T. Act, Police Station Suriyawan, District - Bhadohi. The Investigating Officer after investigating Officer submitted charge-sheet dated 29.5.2008 only against four accused persons, namely, Bholanath Verma, Vijay Kumar Verma, Anil Kumar Verma and Sashikant @ Badri, under sections 323, 504, 506 IPC and Section 3(1)10 of S.C./S.T. Act. At the time of presenting the charge-sheet before the court concerned by the Investigating Officer, the informant has also moved an application dated 17.6.2008 with a prayer to summon the additional accused and to alter the sections. The said application dated 17.6.2008 was allowed by the Magistrate concerned taking cognizance of the offence against four charge-sheeted accused persons as well as four non-charge-sheeted persons (who are the applicants in this case) by adding some more section 452, 395, 397, 307 IPC in addition to Sections 323, 504, 506 3(1)10 SC/ST Act with further direction to the office to produce the charge-sheet before him after adding the aforesaid additional accused persons and the sections as directed by him and summoned them. The said case was registered as case no. 1768 of 2008. 9. Aggrieved by the said order dated 17.6.2008, four accused persons, who were not charge-sheeted but have been added by the order dated 17.6.2008 of the Magistrate concerned at the time of taking cognizance, have preferred the present application with a prayer to quash the impugned charge-sheet and order dated 17.6.2008 against them, in which, on 16.8.2008 interim stay order was passed by this Court. 10. Thereafter, Bare Lal (opposite party no.2) alongwith three other accused persons, who are accused in the FIR dated 16.4.2006 lodged by Anil Kumar Verma from the side of applicant also filed Application under Section 482 Cr.P.C. No. 28032 of 2008 against the charge-sheet dated 13.5.2006 filed against them by taking stand that since the proceedings of Criminal Case No.1768 of 2008 has been stayed by this Court in Criminal Misc. Application under Section 482 Cr.P.C. No. 16160 of 2008 on 30.6.2008, therefore, further proceedings of case no. 1083 of 2006 pursuant to charge-sheet dated 13.5.2006 filed against them is also liable to be stayed. The co-ordinate Bench of this Court considering the said submission of the applicants in Application under Section 482 Cr.P.C. No. 28032 of 2008 also passed the interim stay order dated 23.10.2008. 1083 of 2006 pursuant to charge-sheet dated 13.5.2006 filed against them is also liable to be stayed. The co-ordinate Bench of this Court considering the said submission of the applicants in Application under Section 482 Cr.P.C. No. 28032 of 2008 also passed the interim stay order dated 23.10.2008. From perusal of the said interim order dated 23.10.2008, it appears that while passing the said order dated 23.10.2008, merit of the said case was not considered but the interim stay order was passed only on the ground that proceeding of criminal case no. 1768 of 2008 has been stayed by order dated 30.6.2008. 11. Now, on the said facts, the main substratum of argument of learned counsel for the applicants are as under:- (i) At the stage of taking cognizance on the police report (charge-sheet) under Section 173(2) Cr.P.C., the informant has no locus to be heard. (ii) At the time of taking cognizance, the Magistrate cannot direct to add the additional accused, who have not been charge-sheeted in the police report. (iii) At the stage of taking cognizance, the Magistrate cannot add/alter the sections other than the sections mentioned in the charge-sheet. (iv) In the original police report/charge-sheet, neither the name of additional accused can be added nor any sections can be added or subtracted or altered. (v) The order dated 17.6.2008 is wholly illegal, as the Magistrate concerned while passing the order dated 17.6.2008 exceeded his jurisdiction. (vi) The last plank of the submission of learned counsel for the applicant is that even otherwise accepting the material on record, no prima facie offence is made out against the applicants, because the basic ingredients to constitute of offence, for which, the applicants have been summoned are lacking on record. The procedure adopted by the Magistrate concerned at the time of taking cognizance of the matter is not sustainable in the eye of law, therefore, the entire proceedings pursuant to impugned order dated 17.6.2008 is vitiated and as such the impugned charge-sheet, order dated 17.6.2008 and all other further proceedings pursuant thereto so far as present applicants are concerned are liable to be quashed. It is also submitted that the four accused persons who are charge-sheeted in charge-sheet dated 29.5.2008 are facing trial. 12. It is also submitted that the four accused persons who are charge-sheeted in charge-sheet dated 29.5.2008 are facing trial. 12. Per contra, learned AGA vehemently opposed the prayer of the applicants and refuting the contention advanced on behalf of the applicants submitted that the learned Magistrate while passing the impugned order dated 17.6.2008 has considered all aspects of the matter and was of the opinion that the Investigating Officer has not conducted the fair investigation. Several material evidences have been overlooked by the Investigating Officer. Allegations of mala fide has also been leveled by the informant against the Investigating Officer by contending that since Human Right Commission had imposed the cost of Rs. 10,000/-, on the S.H.O. of P.S. Suriyawan, therefore, the Investigating Officer of the present case under his influence let off the present applicants and have not submitted the charge-sheet against them, therefore, there is no illegality in the impugned order dated 17.6.2008 and the present application is liable to be dismissed. 13. After having heard the argument of the learned counsel for the parties, I find that the main issue involved in this case is whether the Magistrate at the time of taking cognizance is empowered to direct or to pass order to add some additional accused persons in the charge-sheet, who have not been chargesheeted? and whether at the stage of taking cognizance, the Magistrate is empowered under the Code of Criminal Procedure to add or alter the sections other than the sections mentioned in the charge-sheet? 14. Before delving into the issue, it would be appropriate to reproduced the Sections 216 and 218 Cr.P.C.:- "216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded." "218. Separate charges for distinct offences. (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223. Illustration A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt." 15. The issue involved in this case has been well considered and discussed by the Apex Court in case of State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) AIR SC 620 has held that there cannot be any alteration of section at the stage of taking cognizance by the Magistrate because for that purpose there is a specific provision under Sections 216, 218 and 228 Cr.P.C. at the appropriate stage. The paragraph no. 14 of the said judgment of the Apex Court is reproduced herein-below:- "14. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet." 16. The aforesaid judgment of Apex Court has also been relied upon by the co-ordinate Bench of this Court in an application u/s 482/378/407 No. 3728 of 2014 (Naim Vs. State of U.P. and another) and has allowed the application by holding that the Magistrate has no authority to make any subtraction or addition of the offences mentioned in the charge-sheet at the stage of taking cognizance. State of U.P. and another) and has allowed the application by holding that the Magistrate has no authority to make any subtraction or addition of the offences mentioned in the charge-sheet at the stage of taking cognizance. He at the stage of taking cognizance can simply form an opinion, as to whether the case is fit for taking cognizance and committing the matter for trial or not. It is well settled that in case the Magistrate is not satisfied with the conclusion of the investigation, he is free to order for further investigation of the case under Section 173(8) Cr.P.C. on submitting the police report. As such, the impugned order dated 17.6.2008 is without jurisdiction and not sustainable in the eye of law. 17. Considering the dictum of the Apex Court as discussed above, this Court also feels that under the peculiar facts and circumstances of the case, the impugned order dated 17.6.2008 and the charge-sheet dated 29.5.2008 with regard to present applicants only are liable to be quashed by this Court, as the criminal proceedings pursuant to order dated 17.6.2008 so far as present applicants are concerned is abuse of process of the Court. 18. In view of above, in order to secure the ends of justice, the impugned order dated 17.6.2008 and impugned charge-sheet dated 29.5.2008 so far as against the present applicants are concerned and further proceedings of case no. 1768 of 2008 against the applicants only pending in the court of A.C.J.M., Bhadohi at Gyanpur are hereby quashed. 19. The application is hereby allowed.