Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 562 (ALL)

Uday Pratap Singh v. State of U. P.

2023-02-27

SHREE PRAKASH SINGH

body2023
JUDGMENT : SHREE PRAKASH SINGH, J. 1. Heard Sri Anurag Shukla, Advocate and Sri Birendra Pratap Singh, learned counsel for the applicant, Sri Pankaj Kumar Singh, learned counsel for the opposite party no. 2 and Sri Anirudh Kumar Singh, learned AGA-I for the State. 2. By means of the instant application, the applicant-petitioner has prayed that the learned Additional Sessions Judge/FTC-I, Sultanpur may be directed to proceed with the trial of the Sessions Trial No. 573 of 2022 (State vs. Vijay Pratap Singh and Others), arising out of Case Crime No. 0257 of 2021, U/s 302,120-B I.P.C. Police Station-Munshiganj, District-Amethi, while following each and every mandatory and obligatory steps of the procedure prescribed in Code of Criminal Procedure for ensuring the very fair and transparent justice. 3. The factual matrix of the case is that an F.I.R. was lodged against the present applicant and his brother namely Vijay Pratap Singh at Police Station-Munshiganj, District-Amethi on 18-10-2021 and thereafter, the investigation conducted and Chargesheet was filed before the learned Trial Court on 16-12-2021 under sections 302 and 120-B of I.P.C. against the applicant-petitioner and the other co-accused persons. After filing of the Chargesheet, the concerned Magistrate took cognizance of the offences on 22-04-2022 and committed the matter before the learned Sessions Judge, Sultanpur. 4. The electronic evidences i.e. compact device and Pen Drive was allegedly not given to the present applicant and the other co-accused persons, which came into the knowledge of the applicant after perusal of the case diary. In the compact device and pen drive, the statement of the deceased is said to be copied from the mobile of the complainant, which as per the applicant, is an important document and that should have been given to the applicant, but, once an application was moved under section 207 of Cr.P.C. before the learned court below on 14-07-2022 for providing the aforesaid, prior to framing of the charges, the same was not given to the applicant and thus, the contention is that the trial court has violated the mandate of the provisions of section 207 of Cr.P.C. and the trial court prior to framing of charges, did not apply its judicial mind on discharge of the applicant, which is a valuable right. 5. 5. Learned counsel appearing for the applicant contends that even after an application moved before the court below on 14-07-2022, under sections 207/228 of Cr.P.C. the electronic devices i.e. the Compact Disc. as well as the Pen Drive was not provided to the applicant, though from perusal of the case diary, it reveals that the compact device and pen drive has been submitted with the case diary by the Investigating Officer. 6. Adding his arguments, he submits that since the compact device and pen drive is a part of the case diary and certainly, the prosecution shall rely on the same during the course of the trial and therefore, those are the important documents from the side of the prosecution, therefore, the copy of the same should have been provided by the trial court while following the proceedings under Section 207 of Cr.P.C. He further submits that vide order dated 20-07-2022, the application of the applicant dated 14-07-2022 has been rejected and a finding has been recorded that the copy of the Compact device and pen drive has already been provided to the applicant and thereafter, the matter was committed to the Sessions Court. He submits that in fact this is a perverse finding as uptil date the copy of the pen drive and compact disc. has not been given to the present applicant and there is no proof that the copy of the aforesaid documents was ever given to the applicant, thus, the order dated 20-07-2022 is perverse and vitiates in the eyes of law. 7. He further contended that apart from the aforesaid, the applicant has also assailed the order dated 20-07-2022 as well as the further criminal proceedings of Sessions Case No. 573 of 2022 on the premise that the learned trial court prior to framing of the charges did not apply its judicial mind with respect to the mandate of the provisions of section 227 of Cr.P.C. i.e. discharge of the accused. He next added that the discharge is the stage after which the trial starts and thus, it is valuable right of an accused and this provision also discloses that for application of mind on the discharge of an accused, the record of the case and the documents submitted therewith including the submissions of the accused and the prosecution be considered by the trial court and if it was found that it is not a case for discharge of the accused, the court will proceed for framing of charges. He submits that in the present matter, the charges were framed without application of judicial mind over the discharge of the accused, which is apparent on the record itself. 8. In support of his contentions, he has placed reliance on a Judgment reported in OPTO Circuit India Limited vs. Axis Bank and Others, (2021) 6 SCC 701 and has referred paragraph no. 15 of the aforesaid Judgment, which is quoted herein under: “15. This Court has time and again emphasised that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner alone and in no other manner. Among others, in a matter relating to the presentation of an Election Petition, as per the procedure prescribed under the Patna High Court Rules, this Court had an occasion to consider the Rules to find out as to what would be a valid presentation of an Election Petition in the case of Chandra Kishor Jha vs. Mahavir Prasad and Others, (1999) 8 SCC 266 and in the course of consideration observed as hereunder: “It is a well settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.” Therefore, if the salutary principle is kept in perspective, in the instant case, though the Authorised Officer is vested with sufficient power; such power is circumscribed by a procedure laid down under the statute. As such the power is to be exercised in that manner alone, failing which it would fall foul of the requirement of complying due process under law. We have found fault with the Authorised Officer and declared the action bad only in so far as not following the legal requirement before and after freezing the account. As such the power is to be exercised in that manner alone, failing which it would fall foul of the requirement of complying due process under law. We have found fault with the Authorised Officer and declared the action bad only in so far as not following the legal requirement before and after freezing the account. This shall not be construed as an opinion expressed on the merit of the allegation or any other aspect relating to the matter and the action initiated against the appellant and its Directors which is a matter to be taken note in appropriate proceedings if at all any issue is raised by the aggrieved party.” 9. Referring the aforesaid, he submits that the Hon'ble Apex Court in the abovesaid case held that if the statute provides for a thing to be done in a particular manner, then, it has to be done in the manner prescribed and not otherwise. He added that Section 227 of the Code of Criminal Procedure envisages with respect to discharge and the opening sentence of the aforesaid provision says that 'upon consideration of the record of the case and documents and submissions' the court comes to the conclusion that if there are no sufficient grounds, it shall discharge the accused and 'shall record the reasons for so doing'. He added that the intent of the legislature is very clear that the trial court has to apply its mind on discharge, considering the records and submissions and therefore, the trail court has to proceed accordingly, otherwise, the same would be in sheer violation of law propounded by the Apex Court. 10. He has also placed reliance on the Judgment reported in Anita Kushwaha vs. Pushap Sudan, (2016) 8 SCC 509 and has referred paragraphs no. 29 and 31 of the Judgment above-said. Paragraph nos. 29 and 31 are extracted herein-under: “29. To sum up: Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. To sum up: Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of ‘Ubi Jus Ibi Remedium’ the development of fundamental principles of common law by judicial pronouncements of the Courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognise and enforce. 31. Given the fact that pronouncements mentioned above have interpreted and understood the word “life” appearing in Article 21of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of the Article 21 of the Constitution of India. If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 21 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. The Citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.” 11. Relying upon the abovesaid, he submits that the right to be heard on discharge is valuable right and if somehow the same is ignored, that hits the right guaranteed in Article 21 of the Constitution of India. 12. Placing reliance on the case reported in Union of India vs. Prafulla Kumar Samal and Another, 1979 (3) SCC 4 he has referred paragraph no. 8 of the Judgment abovesaid, which is quoted herein-under: “8. The scope of Section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar vs. Ramesh Singh, where Untwalia, J. speaking for the Court observed as follows: “Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial.” This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.” 13. He elaborated that the Apex Court has held that if proposed evidence do not show the committal of any offence, then there will be no sufficient ground to proceed with trial. 14. Further referred the Judgment reported in Superintendent and Remembrance of Legal Affairs, West Bengal vs. Mohan Singh and Others, (1975) 3 SCC 706 and relied upon Para No. 2. 15. Referring the aforesaid, he submits that Hon'ble Apex Court has settled the law that the successive applications under section 482 Cr.P.C. are maintainable and thus, he submitted that the instant application is also maintainable. 16. He next added and has placed reliance on a Judgment reported in Kanchan Kumar vs. State of Bihar, (2022) 9 SCC 577 and has referred paragraph no. 16. He next added and has placed reliance on a Judgment reported in Kanchan Kumar vs. State of Bihar, (2022) 9 SCC 577 and has referred paragraph no. 12 onwards of the Judgment aforesaid and added that the legal provisions and precedence with respect to Section 227 of the Code of Criminal Procedure has been settled by the Apex Court. 17. He has further placed reliance on the Judgment reported in Willie (William) Slaney vs. State of Madhya Pradesh, AIR 1956 SC 116 and has referred paragraph no. 6 of the Judgment aforesaid, which extracted herein-under: “6. Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision-of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions. The question here is, does the Code deal with the absence of a charge and irregularities in it, and if so, into which of the two categories does it place them? But before looking into the Code, we deem it desirable to refer to certain decisions of the Privy Council because much of the judicial thinking in this country has been moulded by their observations. In our opinion, the general effect of those decisions can be summarised as follows......” 18. Lastly, he has placed reliance on the case of P. Gopalkrishnan @ Dileep vs. State of Kerala and Another, Criminal Appeal (SC) No. 1794 of 2019 has referred paragraph nos. 32 and 34 of the Judgment aforesaid, which are extracted herein-under: “32. It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen drive. The concomitant is that the contents of the memory card/pen drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India. 34. Reverting to the preliminary objection taken by the respondent for dismissing the appeal at the threshold because of the disclosure of identity of the victim in the memo of the special leave petition forming the subject matter of the present appeal, we find that the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the charge-sheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the appellant having himself viewed the contents of the memory card/pen drive does not take the matter any further, once we recognize the right of the accused to get the cloned copies of the contents of the memory card/pendrive as being mandated by Section 207 of the 1973 Code and more so, because of the right of the accused to a fair trial enshrined in Article 21 of the Constitution of India.” 19. Placing reliance on the aforesaid judgment, he added that it has been held by the Apex court that the electronic records also comes under the purview of the documents and an accused must be furnished such electronic documents as per the mandate of Section 207 of the Criminal Procedure Code. He added that identically in the instant matter, the grievance of the applicant is that he has not been furnished the pen drive and compact device though the same have been submitted with case diary. 20. He added that identically in the instant matter, the grievance of the applicant is that he has not been furnished the pen drive and compact device though the same have been submitted with case diary. 20. Concluding his arguments, he added that from perusal of the order dated 20-07-2022, it emerges that there is not a single whisper regarding any consideration with respect to discharge of the applicant and straightaway, the court has framed the charges against the applicant under section 302 read-with 120-B of I.P.C., which itself is decipherable that the learned trial court has passed the order while violating the mandate of the provisions of Section 227 of Cr.P.C. 21. Adding his argument, he further submitted that overtly the trial court has ignored the procedure prescribed under section 207 of Cr.P.C. as admittedly the copy of the pen drive and compact disc. has not been given to the applicant and thus, the submission of counsel for the applicant is that the order dated 20-07-2022 may be set aside and the trial court may be directed to comply with the provisions of Section 207/227 of Cr.P.C. while strictly following the same. 22. Per contra, learned A.G.A. appearing for the State has opposed the contentions aforesaid and submits that there is no perversity or unlawfulness in the order passed by the trial court. He submits that earlier an application under section 482 Cr.P.C. bearing no. 4903 of 2022 was filed by the applicant, with the following reliefs: “(i) quash the order dated 20-07-2022, passed by the court of learned Additional Sessions Judge/FTC-I, Sultanpur in Sessions Trial No. 573 of 2022 (State vs. Vijay Pratap Singh and Others) rejecting the Application moved by the Petitioner under section 207/228 Cr.P.C. as is contained in Annexure No. 1 to this petition. (ii) quash the order dated 20-07-2022, passed by the court of learned Additional Sessions Judge/FTC-I, Sultanpur in Sessions Trial No. 573/2022 (State vs. Vijay Pratap Singh and Others) whereby an order has been passed for framing of the charges against the petitioner and two other co-accused U/s 302/34, 120-B IPC, as is contained in Annexure No. 2 to this petition. (iii) quash the order dated 20.07.2022 passed by the court of learned Additional Sessions Judge/FTC-I, Sultanpur in Sessions Trial No. 573/2022 (State vs. Vijay Pratap Singh and Others) whereby the petitioner and two other co-accused have been charged U/s 302/34,120-B IPC. (iii) quash the order dated 20.07.2022 passed by the court of learned Additional Sessions Judge/FTC-I, Sultanpur in Sessions Trial No. 573/2022 (State vs. Vijay Pratap Singh and Others) whereby the petitioner and two other co-accused have been charged U/s 302/34,120-B IPC. (iv) direct the court of learned Additional Sessions Judge/FTC-I, Sultanpur, to proceed in Sessions Trial No. 573/2022 (State vs. Vijay Pratap Singh and Others) after following the due process of law i.e. after providing the accused persons requisite electronic evidences i.e. Compact Device and Pen-Drive(relief upon as evidence) and after providing full opportunity of hearing to them. (v) direct the court of learned Additional Sessions Judge/FTC-I, Sultanpur not to proceed in Sessions Trial No. 573/2022 (State vs. Vijay Pratap Singh and Others) in furtherance of the orders dated 20-07-2022. (vi).............” 23. Referring the aforesaid, he submits that the present applicant has already challenged the order dated 20-07-2022 passed by the court of learned Additional Sessions Judge/FTC-I, Sultanpur in Sessions Trial No. 573 of 2022. The court after hearing on the abovenoted application, passed an order on 26-07-2022, therefore, the second application under section 482 Cr.P.C. with same relief is not maintainable. 24. The operative portion of the order dated 26.07.2022 is extracted as under: “5. Considering the fact that there is sufficient material on record, the trial Court proceeded to frame charge. The trial Court has also observed that all the relevant documents, relied upon by the prosecution, have been given to the accused at the time of committal under Section 207 Cr.P.C. 6. I have considered the submissions and perused the impugned order passed by the learned trial Court. I do not find that the learned trial Court has committed any error of law or jurisdiction. However, it is provided that if the prosecution is relying on the CD and Pen-drive, which have been sent for forensic examination, the accused shall be supplied the copies thereof along with the copy of the FSL report to enable accused to put their defence effectively. 7. Disposed of.” 25. However, it is provided that if the prosecution is relying on the CD and Pen-drive, which have been sent for forensic examination, the accused shall be supplied the copies thereof along with the copy of the FSL report to enable accused to put their defence effectively. 7. Disposed of.” 25. He next submits that so far as the grievance with respect to non supply of the copy of the Compact Disc and Pen Drive is concerned, that has already been dealt with by this Court in earlier application and at the same time, the court has also observed that if the prosecution would rely upon the C.D. and Pen Drive, which are said to be not given to the present applicant at the stage of proceedings under Section 207 of Cr.P.C. the same shall be given, after receiving from the Forensic Science Laboratory, so that the accused could put his defence effectively. Court further directed that in such event the copy of the F.S.L. report will be given to the applicant. He contends that in fact the dispute/grievance of the applicant has already been dealt with by a coordinate Bench of this court, in application under section 482 Cr.P.C. bearing no. 4903 of 2022 and the present applicant is again challenging the order dated 20-07-2022 on the same pretext, thus, the instant application is nothing, but reiteration of reliefs which have earlier been sought, therefore, this application is being used as a tool of modification/correction in the order dated 26-07-2022 and added that if the present applicant is in fact feeling aggrieved with the order dated 26-07-2022, he may assail the same at an appropriate forum. Therefore, the present application is liable to be dismissed. 26. Having heard learned counsel for the parties and after perusal of material placed on record, it emerges that the present applicant has already filed an application under section 482 Cr.P.C. bearing no. 4903 of 2022, wherein the order dated 20-07-2022 was assailed and an identical grievance was raised in the aforesaid application before the coordinate Bench of this court. 27. Having heard learned counsel for the parties and after perusal of material placed on record, it emerges that the present applicant has already filed an application under section 482 Cr.P.C. bearing no. 4903 of 2022, wherein the order dated 20-07-2022 was assailed and an identical grievance was raised in the aforesaid application before the coordinate Bench of this court. 27. So far as the grievance of the present applicant that the documents i.e. C.D. and Pen Drive were not provided to him, is concerned, the fact remains that those documents have been sent to the Forensic Science Laboratory for its examination and if it is found that those are not tampered, the question would arise that whether the prosecution is relying upon the same or not and in case, the same would be relied upon by the prosecution and the copy is not been provided, certainly, there would be violation of law and therefore the instant application has been filed at premature stage. 28. This court has noticed the fact that the coordinate Bench of this court while passing the order on 26-07-2022, in application under section 482 Cr.P.C. bearing no. 4903 of 2022, provided that “if the prosecution is relying on the CD and Pen-Drive, which have been sent for forensic examination, the accused shall be supplied the copies thereof along with the copy of the FSL report to enable accused to put their defence effectively.” In this view of the matter, the grievance of applicant has already been exhausted, but, repeatedly almost the same prayer has been made in ambiguous manner, without mentioning the date of the order, but, the intent and content is the same, though it is trite law that subsequent application under section 482 of Cr.P.C. is maintainable, but, that is in the case of changed circumstances. So far as the present matter is concerned, the applicant has failed to demonstrate that what are the changed circumstances after the earlier order dated 26-07-2022 passed by the coordinate Bench of this court, 29. So far as the present matter is concerned, the applicant has failed to demonstrate that what are the changed circumstances after the earlier order dated 26-07-2022 passed by the coordinate Bench of this court, 29. So far as the law propounded by the Apex Court in the case of P. Gopalkrishnan @ Dileep vs. State of Kerala and Another, Criminal (SC) No. 1794 of 2019 is concerned, the same is very clear in its conclusion as in Para No. 44, it is provided that if the prosecution is relying on any electronic record (memory card/pen drive etc.) the accused must be given cloned copy. The wordings are very clear that the electronic records which are documents of evidenciary value, be provided if the prosecution relies on the same and thus, this verdict also supports the version of the prosecution. 30. Further so far as the law cited by the learned counsel for the applicant in case of OPTO Circuit India Limited vs. Axis Bank and Others, (2021) 6 SCC 701 is concerned, the Apex Court has categorically held and reiterated the settled law that if the statute provides for a thing to be done in a particular manner, then the same has to be done in that manner and not otherwise. 31. So far as bare reading of provisions of Section 227 of the Cr.P.C. is concerned, the intent of legislature is clear from its last line as it contains that he will discharge an accused and record his reasons for so doing and thus, it is clear that the manner for discharging an accused has been prescribed and therefore, the trial court while discharging an accused, shall record reasons in writing, thus, after consideration of the records and after hearing of the submissions, if the trial court does not find sufficient grounds, it will proceed for framing of charges. At the stage of framing of charges, the court is not required to hold the detailed enquiry and only prima-facie, case is to be seen. 32. At the stage of framing of charges, the court is not required to hold the detailed enquiry and only prima-facie, case is to be seen. 32. This court is also aware of the settled law in case of Superintendent and Remembrance of Legal Affairs, West Bengal vs. Mohan Singh and Others, (1975) 3 SCC 706 , which says that the second application under section 482 Cr.P.C. is maintainable but in the changed circumstances, which varies case to case and so far as the present case is concerned, the applicant has failed to establish at this stage that there are changed circumstances. 33. In the light of the aforesaid submissions and discussions, this court is of the considered opinion that there is no merit in the instant application. 34. Resultantly, the application is hereby dismissed. 35. Office shall communicate this order to the court below.