Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 1498 (ALL)

Mohammad Shahid Siddiqui v. State of U. P.

2021-12-06

SANGEETA CHANDRA

body2021
JUDGMENT : SANGEETA CHANDRA, J. 1. This petition has been filed challenging the order dated 11.11.2020 passed by the learned Sessions Judge, Raebareli and praying for trial of Sessions Trial No. 429 of 2015, State of U.P. vs. Shailendra Singh and Sessions Trial No. 473 of 2015 and State of U.P. vs. Rashid Siddiqui be expedited in the interest of justice. 2. It is the case of the petitioner that the son of the petitioner was a lawyer practicing primarily in the District and Sessions Court, Prayagraj, who was murdered by the respondent No. 2 in broad daylight within the Civil Court premises of District Prayagraj on 11.03.2015. The respondent no. 2 who is a police officer used his service revolver to commit the crime in question by firing on the chest of the deceased which injury proved fatal and caused death on the spot. 3. It has been submitted that the crime in question was committed in connivance with respondent no. 3, namely, Rashid Siddiqui, who had earlier threatened the deceased son of the petitioner, FIR No. 161 of 2016 under Section 302 IPC was registered against the respondent nos. 2 and 3 at police station Karnal Ganj, District Allahabad which was later renumbered as Case Crime No. 183 of 2015. 4. A counter case was also registered after two days by the wife of the respondent no. 2 on 13.03.2015 at Police Station Karnal Ganj under Section 333, 353, 307 IPC against the deceased son of the petitioner and some unknown persons which was later renumbered as Case Crime No. 193 of 2015. Since, the incident had occurred in broad daylight within the Civil Court premises and it had serious repercussions on the security of District Court, the High Court at Allahabad took Suo Moto cognizance of the incident and a Public Interest Litigation was registered In Re vs. Zila Adhivakta Sangh, Allahabad bearing PIL No. 15895 2015, so that the entire matter could be considered holistically and appropriate directions be issued thereafter. 5. On 28.08.2015, the seven Judges Bench transferred the proceedings of Case Crime No. 183 of 2015 and Case Crime No. 193 of 2015 to the Sessions Court at Raebareli. On 03.03.2016, the Court also directed expediting the trial in a petition filed under Section 482 of the Cr.P.C. bearing petition no. 1092 of 2016 by the present petitioner Mohd. 5. On 28.08.2015, the seven Judges Bench transferred the proceedings of Case Crime No. 183 of 2015 and Case Crime No. 193 of 2015 to the Sessions Court at Raebareli. On 03.03.2016, the Court also directed expediting the trial in a petition filed under Section 482 of the Cr.P.C. bearing petition no. 1092 of 2016 by the present petitioner Mohd. Shahid Siddiqui, the father of the deceased. 6. During trial an application was filed before the trial court by the DGC on 01.02.2019 allegedly at the behest of the respondent, seeking stay of Sessions Trial No. 429 of 2015 on the ground that file of connected Case Crime No. 193 of 2015 is unavailable. However, the learned trial court proceeded to record the statement of the witnesses and sought a report in respect of the alleged misplacing of file in Case Crime No. 193 of 2015 from the Chief Judicial Magistrate. On enquiry, by the petitioner also, it come out that even after a period of four and a half years, the investigation in the aforesaid Case Crime No. 193 of 2015 had not been completed and no charge sheet had been filed. 7. It has been submitted by the learned counsel for the petitioner that the investigating agency was dragging its feet only to help the respondent no. 2 as well as other co-accused. The petitioner again approached this Court praying for an order of expeditious disposal of trial in Case Crime No. 183 of 2015. The Court passed an order on 02.05.2019 expediting the trial. The Court also rejected the third bail application of respondent no. 2. Despite efforts being made by the petitioner by making applications to the Superintendent of Police, Prayagraj to expedite the investigation in Case Crime No. 193 of 2015 and to get the charge sheet submitted expeditiously, no heed was paid by the police, and no report was submitted. 8. Learned AGA for the State at this time has interjected on the basis of written instructions on his file and as per counter affidavit to say that the investigation has been concluded and a final report No. 283 of 2021, dated 22.08.2021 had been prepared. A copy of which has also been filed as annexure-01 to the said counter affidavit. Learned AGA for the State at this time has interjected on the basis of written instructions on his file and as per counter affidavit to say that the investigation has been concluded and a final report No. 283 of 2021, dated 22.08.2021 had been prepared. A copy of which has also been filed as annexure-01 to the said counter affidavit. It has also been submitted by the learned AGA for the State that since the main accused had died and others were unknown persons in the FIR, despite serious attempts being made to find out their identity, the Investigating Officer could not collect evidence enough to file the charge-sheet. 9. Learned AGA for the State has pointed from the counter affidavit filed on 25.08.2021 that the final report was tried to be submitted in Case No. 193 of 2015 alongwith the original case diary in the office of District Judge, Raebareli. The District Judge directed that as per the case diary, the jurisdiction of the case lay with the Special Chief Judicial Magistrate. When the Special Chief Judicial Magistrate was approached through DGC (Criminal), it was told that the said final report should be submitted in the Court of Special Chief Judicial Magistrate, Allahabad. The Inspector concerned, thereafter, approached the office of the Special Chief Judicial Magistrate at Allahabad, who observed after perusing the order of the High Court, that the final report cannot be accepted by him and he would consult the Special Judge, Raebareli and other senior Judicial Officers, and thereafter, the APO concerned shall be informed as to future course of action. This report by the Inspector dated 25.08.2021 has also been filed as Annexure-02 to the counter affidavit of the State Respondent. 10. It has been submitted by the learned counsel for the petitioner that despite efforts being made, trial in Case Crime No. 183 of 2015 in the Sessions Trial No. 429 of 2015 has not reached its conclusion although witnesses have been examined and it is at the stage of arguments. 11. 10. It has been submitted by the learned counsel for the petitioner that despite efforts being made, trial in Case Crime No. 183 of 2015 in the Sessions Trial No. 429 of 2015 has not reached its conclusion although witnesses have been examined and it is at the stage of arguments. 11. It has been submitted by the learned counsel for the petitioner that in the mean time, leaned trial court has passed a misconceived order on 11.11.2020, referring to the application made by the respondents, that the seven Judges Bench had directed trial of both the cases to be held together, and therefore, the learned District Judge despite prima-facie expressing an opinion that it was almost impossible to hold trial together, as in one case no charge sheet had been filed till date and in another arguments were at the stage of conclusion, has called for a report from the police with regard to stage of investigation in Case Crime No. 193 of 2015. 12. It has been submitted that aggrieved by the order dated 11.11.2020, where the learned Sessions Judge has expressed an opinion that both matters be tried together, the petitioner approach this Court in this petition under Section 482 of the Cr.P.C. namely, petition no. 3235 of 2020. 13. This Court being convinced of the arguments made by the learned counsel for the petitioner had issued notice to the respondents no. 2 and 3 directing them to file their counter affidavit and had further directed that until further orders of the Court the effect and operation of the impugned order dated 11.11.2020 shall remained stayed. It had also clarified that the Sessions Trial of the Case shall also continue to proceed and the Court should conclude the trial thereafter. It has been submitted that because of stay of the order dated 11.11.2020 by this Court by means of interim order dated 05.01.2021, the trial has not been concluded. 14. This Court has carefully perused the order dated 28.08.2015 passed by the seven Judges Bench, it appears that before the seven Judges Bench, an application was moved on 21.07.2015 by Smt. Sapna Singh W/o Shailendra Singh, Sub-Inspector, who was posted at Allahabad when the incident took place in the premises of the District Court on 11.03.2015. 14. This Court has carefully perused the order dated 28.08.2015 passed by the seven Judges Bench, it appears that before the seven Judges Bench, an application was moved on 21.07.2015 by Smt. Sapna Singh W/o Shailendra Singh, Sub-Inspector, who was posted at Allahabad when the incident took place in the premises of the District Court on 11.03.2015. The Sub- Inspector, Shailendra Singh had been lodged in Naini Jail, Allahabad as accused in Case Crime No. 183 of 2015, under Section 302 of the IPC. In the bail application submitted by his wife on 25.06.2015, an Advocate of this Court tried to appear on behalf of the Sub-Inspector, Shailendra Singh in the District Court, Allahabad however she was abused and physically obstructed from presenting the bail application. Again an effort was made on 26.06.2015 to submit an application for bail but the Advocates were preventing her from appearing. A similar incident also took place on 27.06.2015. The Court observed that there is a reasonable apprehension in the mind of the applicant i.e. Smt. Sapna Singh w/o Sub-Inspector, Shailendra Singh that a fair trial would not take place in the matter in the District Court at Allahabad as even the bail application of the Sub-Inspector, who was the accused could not be presented to the court. The court recorded the consent of the then Advocate General of the State regarding prayer for transfer of proceeding. The court observed thereafter that “further proceedings arising out of Case Crime No. 183 of 2015 and connected Case Crime No. 193 of 2015, under Section 333, 353, 307 of the Penal Code shall stand transferred to the Sessions Court Raebareli. The District Judge Allahabad is directed to transmit the case file expeditiously and in any event by 08.09.2015.” 15. This Court having considered the counter affidavit filed by the State respondent and also the submissions made by the counsel for the petitioner and counsel for the respondent no. 2 herein, finds that till the date of passing of the order by this Court on 28.08.2015, no charge sheet had been filed in the Court of Chief Judicial Magistrate at Allahabad. There was no order taking cognizance or summoning the accused. There was also no order of committal of trial to the sessions court. Inadvertently, it could not be pointed out to the seven Judges Bench which passed the order on 28.08.2015. 16. There was no order taking cognizance or summoning the accused. There was also no order of committal of trial to the sessions court. Inadvertently, it could not be pointed out to the seven Judges Bench which passed the order on 28.08.2015. 16. There was only an FIR under Section 333, 353, 307 I.P.C. and an application moved by Smt. Sapna Singh W/o Sub-Inspector, Shailendra Singh and mentioning that the Sub- Inspector was in jail and his bail application could not be moved because of opposition by lawyers in the District Court at Allahabad. 17. When the file of Case No. 183 of 2015/Sessions Trial No. 429 of 2015 was transferred, to the Court of District and Sessions Judge, Raebareli, it may have been that the FIR in Case Crime No. 193 of 2015 and the application moved by Smt. Sapna Singh was transferred alongwith said case file as directed by the seven Judges Bench of this Court. However, since no charge sheet had been submitted, no cognizance has been taken, and no summons order was issued, there was no committal of trial to the Sessions Court. The file being tied, when the case come up before the District Judge concerned on 11.11.2020, he made the observations in the impugned order dated 11.11.2020 that the Court had directed that both proceedings should be held jointly. 18. This Court has carefully perused the order passed by the High Court on 28.08.2015 and finds that there is no observation of the seven Judges Bench that trial shall be held jointly. There is only a direction for transfer of proceedings in both case crime numbers to the District and Sessions Court at Raebareli. The learned trial court in its order dated 11.11.2020 challenged in this petition, has observed that no charge sheet has been file in Case Crime No. 193 of 2015, and one of the named accused had died and others were unknown persons. Therefore, it directed the police to submit a report regarding the status of the investigation as on 11.11.2020. However, a prima facie opinion had also been expressed by the learned District Judge that trial should be held together as has been directed by the High Court in its seven Judges Bench order dated 28.08.2015. Such an opinion, is only an opinion and cannot govern the proceedings in Sessions Trial No. 429 of 2015. However, a prima facie opinion had also been expressed by the learned District Judge that trial should be held together as has been directed by the High Court in its seven Judges Bench order dated 28.08.2015. Such an opinion, is only an opinion and cannot govern the proceedings in Sessions Trial No. 429 of 2015. The Sessions Judge has referred to the judgment in the case of State of U.P. vs. Mishri Lal, 2003 (9) SCC 426 and Nathilal vs. State of U.P. 1999 Supp. SCC 145. However, this Court is of the considered opinion that the Hon'ble Supreme Court having considered the entire law on the subject with regard to procedure to be followed by the learned trial court to determine whether a case has to be conducted as a joint trial or as a separate trial in case of a cross FIR has expressed a definitive opinion in paragraph 48 of its judgment rendered in the case of Nasib Singh vs. State of Punjab and Others, 2021 SCC Online SC 924 delivered by it on 08.10.2021. Para-48 of the judgment in Nasib Singh (supra) is being quoted herein-below: “48. From the decisions of this Court on joint trial and separate trials, the following principles can be formulated: (i) Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219-221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may Section 223, a joint trial may be conducted. Similarly, under be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied. (ii) While applying the principles enunciated in Sections 218-223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely (i) whether conducting a joint/separate trial will prejudice the defence of the accused and/or (ii) whether conducting a joint/separate trial would cause judicial delay. (iii) The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. (iii) The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix. (iv) Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice. (v) A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.” 19. Accordingly, this petition is disposed of with a direction to the learned trial court to proceed in the matter in view of the law settled by the Hon'ble Supreme Court in the case of Nasib Singh vs. State of Punjab and Others (Supra) and conclude the trial as expeditiously as possible.