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2022 DIGILAW 1408 (ALL)

Sanjeet Rathi @ Bhuvnesh Rathi v. State of U. P.

2022-09-06

MANJU RANI CHAUHAN

body2022
JUDGMENT : MANJU RANI CHAUHAN, J. 1. In compliance of the order of this Court dated 02.09.2022, Mr. Amit Kumar Srivastava, Advocate, Advocate Roll No. A/A 067/2019, Common Room No. 3, Mobile No. 9415653155 is present before this Court along with Mr. Vijai Kumar Tiwari, Advocate, Advocate Roll No. A/V 0108/2012, Chamber/Seat No. 1, Mobile No. 9415291367. 2. Mr. Amit Kumar Srivastava, Advocate, Advocate Roll No. 0A/A 0578/2012 to be read as Amit Kumar Srivastava-1 and Mr. Amit Kumar Srivastava, Advocate, Advocate Roll No. A/A 067/2019 to be read as Amit Kumar Srivastava-2. 3. As informed by Mr. Amit Kumar Srivastava, Advocate AoR No. 0A/A 0578/2012, Mobile No. 9415217295 that counsel bearing the same name has misguided his client, using his name and has filed his Vakalatnama in the present case. Explanation was sought from the aforesaid counsels and they informed that the district Court counsel had asked Mr. Vijai Kumar Tiwari, Advocate to engage Mr. Amit Kumar Srivastava-1 as counsel, therefore, he approached him, however, due to the high engagement fees as asked by him, he engaged Mr. Amit Kumar Srivastava-2. When the client approached Mr. Amit Kumar Srivastava-1 then he came to know about engagement of Mr. Amit Kumar Srivastava-2 by Mr. Vijai Kumar Tiwari, Advocate. 4. Mr. Vijai Kumar Tiwari, Advocate has shifted the burden of such mistake upon the district Court counsel as well as the client and both the counsels Mr. Vijai Kumar Tiwari and Mr. Amit Kumar Srivastava-2 tender unconditional apology for the harassment faced by Mr. Amit Kumar Srivastava-1 in such situation. They also submit that they will be cautious in future while accepting the brief from district Court counsels. 5. This Court has come across the situation frequently where counsels bearing the same name, as in the present case, are being cheated by the clients in district Court as well as the counsels bearing the same name is giving brief to some other counsel of similar name. 6. In such situation, conscious effort should be made by Bar Council to do the needful so that the counsel having similar names do not face the difficulty as has been in the present case. For example, numbers may be given to the counsels like Amit Kumar Srivastava-1, 2 and 3 etc. so that the Court and everyone may come to know as to who the counsel is. Thus, Mr. For example, numbers may be given to the counsels like Amit Kumar Srivastava-1, 2 and 3 etc. so that the Court and everyone may come to know as to who the counsel is. Thus, Mr. Amit Kumar Srivastava, Advocate AoR No. 0A/A0578/2012 will move an application before the Bar Council of Uttar Pradesh to do the needful in this respect. 7. The Chairman of Bar Council of Uttar Pradesh is directed to take appropriate measures to help the counsels bearing the similar names so that such situation, as in the present case, may not be created. 8. The Registrar General of High Court Allahabad is also directed to ensure the compliance of the aforesaid order. 9. Heard Mr. Amit Kumar Srivastava, Advocate AoR No. A/A 0578/2012, learned counsel for the applicant and Mr. Pankaj Srivastava, learned A.G.A. for the State. 10. The application u/s 482 Cr.P.C. has been filed by the applicant with prayer to quash the order dated 28.09.2021 passed by Additional District Judge-5th, Bareilly on the application under Section 216 Cr.P.C. for alter of charge in S.T. No. 118 of 2019, arising out of Case Crime No. 569 of 2018, under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, P.S. Fatehganj West, District-Bareilly. It has been further prayed to direct the Court below to alter the charge under Section 306 I.P.C. on the ground of supplementary case diary no. 35 dated 25.08.2020. 11. Learned counsel for the applicant submits that earlier an F.I.R. was lodged under Sections 498A, 304B and Section 3/4 D.P. Act. After completion of investigation, charge sheet was submitted under Sections 498A, 304B and Section 3/4 D.P. Act on 25.01.2019. However, by order of the S.S.P. concerned, further investigation was conducted in the matter and the supplementary charge-sheet was submitted, as is evident from order dated 07.02.2020, placed at Page-48 of the application by means of which, supplementary charge-sheet regarding the offence under Section 306 I.P.C. has been placed on record. 12. Learned counsel for the applicant further submits that prior to submission of supplementary charge-sheet, discharge application was moved which was rejected. However, after coming of the supplementary charge sheet, an application for alteration of charge was moved which has been rejected by the order impugned in an illegal manner and without application of judicial mind. 12. Learned counsel for the applicant further submits that prior to submission of supplementary charge-sheet, discharge application was moved which was rejected. However, after coming of the supplementary charge sheet, an application for alteration of charge was moved which has been rejected by the order impugned in an illegal manner and without application of judicial mind. Learned counsel for the applicant further submits that in view of several judgments passed by Hon'ble Apex Court as well as High Court, while passing the order impugned, the Court concerned should have considered the charge sheet as well as supplementary charge sheet. In support of his submission he has relied upon the judgment of Hon'ble Apex Court passed in Luckose Zachariah @ Zak Nedumchira Luke and Others vs. Joseph Joseph and Others, 2022 Live Law (SC) 230, where in, it has been held that it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation, in terms of Section 173(8) while passing the cognizance order. 13. Learned A.G.A. could not dispute the correctness of the submissions made by the learned counsel for the applicant and he has no objection if the order dated 28.09.2021 is set aside. 14. This Court feels that Court concerned while passing the order dated 28.09.2021 has not applied its mind and has not considered the aforesaid supplementary charge-sheet. 15. In view of the facts and circumstances of the case, the order dated 28.09.2021 passed by Additional District Judge-5th, Bareilly cannot be legally sustained and is set aside and the same is remitted back to him for decision afresh. While deciding the matter afresh, the concerned Court shall pass a reasoned and speaking order, after taking into consideration the charge sheet as well as supplementary charge sheet, in accordance with law, preferably within a period of one month from the date of production of a certified copy of this order. 16. With the aforesaid directions/observations, this application stands allowed. 17. Office is directed to communicate this order to the Court concerned forthwith.