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2022 DIGILAW 1885 (ALL)

Sumit Agarwal v. State of U. P.

2022-11-30

GAUTAM CHOWDHARY

body2022
JUDGMENT : 1. The facts giving rise to the instant application are that a first information report dated 07.08.2020 was lodged with regard to the incident dated 03.08.2020 in Case Crime No. 623 of 2020 under Section 498A, 304-B, 323, 506, 313 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Tajganj, District Agra with the averments that marriage of the daughter of the opposite party no.2 namely, Deepti was solemnised with the applicant no.1 in which more than Rs. 1.5 crores were spent, inspite of the same, the applicants were not happy with the marriage and they started making demand of dowry and due to non-fulfilment of the same, she was tormented. It is also averred that in the year 2017, the applicants assaulted her, due to which she sustained injuries and her medical examination was done in the Government Hospital, Vrindawan. Again on 03.08.2020, the applicant no.2, who is the father in law of deceased telephonically demanded dowry and she was brutally assaulted and to save their skin, the deceased was admitted in Sarvodaya Hospital, Faridabad, where she died on 06.08.2020. Thereafter inquest report and post mortem was conducted on 06.08.2020 and the doctor opined the cause of death was shock and septicaemia and the matter was entrusted for investigation. The statements of the first informant/opposite party no.2 as well as maid and caretaker of the daughter of the applicant no.1 and deceased were recorded under Section 161 Cr.P.C.. In the meantime, the applicant no. 2 filed a Criminal Misc. Anticipatory Bail Application No. 5457 of 2020 (Smt. Anita Agarwal and two others Vs. State of U.P. and another) whereas the applicant nos. 3, 4 and 5 filed a separate anticipatory bail application no. 5460 of 20220 (S.C.Agarwal Vs. State of U.P. and another) and both the anticipatory bail applications were decided by a common order dated 29.09.2020, whereby the applicant nos. 2, 3, 4, 5 were granted anticipatory bail, till conclusion of the trial. Against the order dated 29.09.2020 passed by the co-ordinate Bench of this Court, the opposite party no.2 approached the Hon'ble Supreme Court by way of Criminal Appeal No.872-873 of 2020 arising out of S.L.P. (Cri) Nos. 4935-4936 (Dr. Naresh Kumar Mangla Vs. 2, 3, 4, 5 were granted anticipatory bail, till conclusion of the trial. Against the order dated 29.09.2020 passed by the co-ordinate Bench of this Court, the opposite party no.2 approached the Hon'ble Supreme Court by way of Criminal Appeal No.872-873 of 2020 arising out of S.L.P. (Cri) Nos. 4935-4936 (Dr. Naresh Kumar Mangla Vs. Smt. Anita Agarwal and others) which was allowed vide Judgement and order dated 17.12.2020, setting aside the order dated 29.09.2020, further directing the C.B.I. to conduct further investigation of the case arising out of Case Crime No. 0623 of 2020 registered as Police Station Tajganj, District Agra. Pursuant to the order passed by Hon'ble Apex Court, the C.B.I. registered F.I.R. No. RCO5320215001 at Police Station SCB, Lucknow. The applicant no.1, who happens to be the husband of the deceased, filed Criminal Misc. Bail Application No. 39500 of 2022 (Sumit Agarwal Vs. State of U.P.) before this Court, which came up for consideration before this Court on 07.04.2021 and the co-ordinate Bench of this Court vide order dated 07.04.2021 had rejected the bail prayer of the applicant no.1, however, the applicant no.1 approached the Hon'ble Apex Court by way of filing Special Leave to Appeal No. 3975 of 2021 (Sumit Agarwal Vs. State of Uttar Pradesh and another) and the Hon'ble Apex Court considering the fact that three year old daughter of the applicant no.1 suffering from acute bacillary Dysentery granted interim bail to the applicant no.1 for a period of six weeks. Later on, the interim bail of the applicant was confirmed, vide order dated 18.07.2022, copy of which order has been produced before this Court and taken on record. In the meantime, the investigating officer conducted investigation and after investigation, charge sheet was submitted against the applicants vide charge sheet no. 705 of 2020 dated 24.10.2020 arising out of Case Crime No. 623 of 2020 under Sections 498A, 304B, 323, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Tajganj, District Agra upon which cognizance/summoning order was passed vide order dated 05.11.2020 by the learned Chief Judicial Magistrate, Agra and the case was registered as Criminal Case No. 37339 of 2020 (State Vs. Sumit Agarwal and others). It is this summoning order as well as proceedings of criminal case which is under challenge before this Court. 2. Sumit Agarwal and others). It is this summoning order as well as proceedings of criminal case which is under challenge before this Court. 2. Sri Satish Trivedi learned Senior Advocate along with Sri Gopal S. Chaturvedi, learned Senior Advocate, assisted by Sri Sheshadri Trivedi, learned counsel for the applicants argued that pursuant to the order dated 17.12.2020 passed by Hon'ble Apex Court, the investigation by the C.B.I. was carried out, which culminated in closure report dated 28.06.2022 with the observations that the allegations against the accused persons have not been substantiated, copy of which is annexed as Annexure-27 to the affidavit accompanying the instant 482 Cr.P.C. application. He further submits that even Hon'ble Apex Court while confirming the interim bail of the applicant no.1 had observed that the C.B.I., after investigation, submitted final closure report under Section 173 (8) Cr.P.C. Learned counsel further submits while passing the order dated 17.12.2020, the Hon'ble Apex Court had observed to entrust the investigation of the case to the C.B.I. as the conduct of Investigating authorities from the stage of arriving at the scene of occurrence till filing of charge sheet had not inspired confidence in the robustness of the process with respect to the veracity of the suicide note, medical examination of injuries and the post miscarriages of the deceased, therefore the Hon'ble Apex Court had directed for further investigation by the C.B.I.and the C.B.I. after investigation submitted closure report and that once the closure report submitted by C.B.I., the charge sheet under Section 173 (2) Cr.P.C. lost its significance and effect, thus the learned Magistrate, prior to proceeding with the case must have gone through the closure report, whereas in the instant case, the learned Magistrate in a routine manner took the cognizance and proceeded with the case without considering the closure report as well as other material available on the face of record and had the Magistrate gone through the report, instead of proceedings against the applicants, would have dropped the proceedings against the applicants but by not doing so, the learned Magistrate has committed an illegality thus, the impugned cognizance/summoning order as well as proceedings are liable to be quashed by this Court. 3. 3. On the other hand, Sri S.B.Singh and Sri Rajesh Pachauri, learned counsel for the opposite party no.2 submits that in the instant case, cognizance was taken on 05.11.2020, whereas C.B.I. submitted the closure report on 28.06.2022 i.e. after a lapse of more than 19 months and therefore there is no illegality or perversity in the summoning order. He next submits that Hon'ble Apex Court while passing the order for further investigation to be conducted by the C.B.I., has not annulled the earlier investigation conducted by the U.P.Police. He next submits that after cognizance, the applicants applied for anticipatory bail which was allowed by this co-ordinate Bench of Court but that order has been set aside by Hon'ble Apex Court directing the matter to be further investigated by the C.B.I. and thus the Hon'ble Apex Court was fully conscious and instead of annulling the earlier investigation, ordered for further investigation to be conducted by the C.B.I. and that the C.B.I. was confined only to further investigate the matter and submit its report and the CB.I. was not entrusted to lodge the F.I.R. He next submits that the learned Magistrate has not committed any illegality in passing the order impugned and therefore the impugned order calls for no interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction. 4. Per contra, learned A.G.A. too has opposed the application and argued that there is no illegality or impropriety in the order impugned and thus the the same is liable to be affirmed by this Court and the instant 482 Cr.P.C. is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material on record. 6. The Hon'ble Apex Court in a decision of Vinay Tyagi Vs. Irshad Ali @ Deepak reported in 2012 SCC 903 has observed in paragraph no. 32 as under:- "32 Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code." 7. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code." 7. In the instant case, cognizance was taken on 05.11.2020, whereas the closure report was filed on 28.06.2022 which makes abundantly clear that the learned Magistrate has taken cognizance long back. It goes without saying that the Hon'ble Apex Court while passing the order for further investigation to be conducted by the C.B.I. has not set aside the investigation already conducted by the police. Significant feature of the further investigation is that it does not have effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency, it is a kind of continuation of the previous investigation. 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 report under Section 173 (8) Cr.P.C. but where there is a contradictory reports, then the Magistrate has to read both the reports conjointly and if it reaches a conclusion that the accused has not committed offence, the Court shall discharge the applicants in view of provisions of Section 227 of the Code. 8. After considering arguments raised by the learned counsel for parties, as well considering the entire facts and circumstances of the case and the material placed before this Court, this Court does not find it to be a fit case to exercise its jurisdiction under Section 482 Cr.P.C. for quashing of the impugned summoning order as well as proceedings of the impugned case. 9. Accordingly, the reliefs sought by the applicants is refused. 10. However, it is open for the applicants to raise their grievance in view of provisions under Section 227 of the Code, at appropriate stage. 11. Application is accordingly disposed of. 12. Interim order, if any, stands discharged.