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2024 DIGILAW 192 (ALL)

Kamlesh Yadav v. State of U. P.

2024-01-18

RAJESH SINGH CHAUHAN

body2024
JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Sri Shiv Ram Tewari, learned counsel for the petitioners and Sri Aniruddha Kumar Singh, learned Additional Government Advocate-I for the State. 2. By means of this petition filed under Section 482 Cr.P.C. the petitioners have prayed for the following reliefs: “(i) To set aside the entire criminal proceedings of S.T. No. 156 of 2022 (State vs. Kamlesh Kumar and Others) pending in the Court of learned Sessions Judge, Shrawasti arising out of Case Crime No. 54 of 2021, under Sections 147, 148, 149, 332, 353, 337, 393, 152, 323, 307, 504 and 506 I.P.C. and Section 3/4 of Prevention of Damage to Public Property Act, 1984 and Section 7 of Criminal Law (Amendment) Act, 1932, Police Station-Gilaula, District-Shrawasti along with cognizance order dated 28.07.2021 and the Charge-sheet dated 30.06.2021, so far as it relates to the present petitioners, as contained in Annexure No. 1 to this petition. (ii) To set aside the impugned order dated 23.05.2023 passed by the learned Sessions Judge, Shrawasti, as contained in Annexure No. 5 to this petition. (iii) To say the further proceedings of S.T. No. 156 of 2022 (State vs. Kamlesh Kumar and others) pending in the court of learned Sessions Judge, Shrawasti. (iv) Any other order or direction as this Hon'ble Court may deem just, fit and proper may also be passed in favour of the petitioners.” 3. Attention has been drawn towards the First Information Report (in short F.I.R.) dated 16.04.2021 whereby the false and misconceived allegations have been levelled against the petitioners by one Inspector Incharge, Sri Kamla Kant Tripathi, the informant. 4. Learned counsel for the petitioners has also stated that so far as the allegations relating to Section 307 and 393 I.P.C. are concerned, there is no iota of evidence and material to suggest that those offences have, prima-facie, made out. However, the investigation in question has been conducted in a cursory manner without collecting the relevant material and without recording the statements of the concerning persons filed the impugned charge-sheet under various sections including Sections 307 and 393 I.P.C. 5. However, the investigation in question has been conducted in a cursory manner without collecting the relevant material and without recording the statements of the concerning persons filed the impugned charge-sheet under various sections including Sections 307 and 393 I.P.C. 5. Further attention has been drawn towards Annexure No. 6 of the petition, which is examination of Inspector Incharge, Sri Kamla Kant Tripathi, the informant wherein he has himself stated that he was not present on the spot when the alleged incident has taken place but the Sub-Inspector Sri Kuldeep Rai and Sri Santosh Kumar were present. The Inspector Incharge has further stated that when he reached at the place, he saw that the public property has been damaged and such damage has been seen by the informant himself along with his other officials. He has further stated that he is not sure as to whether the bricks/stones have been recovered from the place. However, there is no mention of that fact in the recovery memo. 6. Learned counsel for the petitioners has therefore submitted that despite the aforesaid fact when the charge under various sections including Sections 307 & 393 I.P.C. have been framed, which have prima-facie not made out on the basis of material and evidence available, an application for deletion of the charge under Section 307 I.P.C. has been filed before the learned trial court concerned and the learned trial court in a mechanical manner, without appreciating the legal and factual arguments rejected such application vide order dated 23.05.2023 (Annexure No. 5). The aforesaid application was rejected mainly on the ground that at the time of framing charges the trial court does not scrutinize all the material and evidences in detail inasmuch as such material/evidence is scrutinized during the course of trial but only on the basis of material available on record, on the basis of prima-facie opinion the charge/charges is/are framed. The learned trial court has further indicated that since the medical examination report of the police personnel is available on the record, therefore, at the time of framing the charges this fact may not be scrutinized that such injury was fatal or not as the aforesaid fact may be scrutinized/tested during the course of trial. 7. The learned trial court has further indicated that since the medical examination report of the police personnel is available on the record, therefore, at the time of framing the charges this fact may not be scrutinized that such injury was fatal or not as the aforesaid fact may be scrutinized/tested during the course of trial. 7. Learned counsel for the petitioners has further drawn attention of this Court towards an judgment of the Apex Court rendered in the case in Jasvinder Saini and Others vs. State (Government of NCT of Delhi), (2013) 7 SCC 256 and Sunil Kumar vs. State of U.P. and Another, 2023 Law Suit (SC) 751 as well as placed reliance of the order of this Court dated 31.10.2023 passed in Application (U/s 482 Cr.P.C.) No. 10659 of 2023, Hanuman Prasad Pandey vs. State of U.P. and Another to submit that the application of the petitioners for deletion of charge of Section 307 I.P.C. should be allowed and those charges may be deleted by the court under Section 216 Cr.P.C. 8. Learned counsel for the petitioner has referred Para-11 of the judgment of Apex Court rendered in the case in Jasvinder Saini and others (supra) whereby the Apex Court has held that the court invoking powers to add or alter any charge whenever the court finds that the defective charge has been made or finds that new charge is considered necessary after commencement of the trial. 9. Per contra, Sri Aniruddha Kumar Singh, learned Additional Government Advocate-I has stated that there is no infirmity, illegality or apparent error in the order dated 23.05.2023 passed by the learned Sessions Judge, Shrawasti rejecting the application of the petitioners whereby the deletion of the charge framed under Section 307 has been prayed. 10. Sri Singh has further submitted that the learned Sessions Judge in para-6 of the order has categorically indicated that there is allegation against the petitioners and others in respect of various sections including Section 307 I.P.C. and so as to substantiate those allegations the injury report of the police personnel was also available on the record, therefore, the learned trial court has rightly observed that such allegations and material would be sufficient to arrive on prima-facie opinion to the effect that the charge under Section 307 I.P.C. may be framed. 11. 11. Sri Singh has further submitted that the learned trial court has also rightly observed that when so many persons were throwing bricks and stones upon other side as well as the police party and injury report is available on the record, thereofre, it would be examine during the course of trial as to whether such offence is liable to establish or not after appreciating the evidence and material so produced by both the sides i.e. the prosecution and the defence. 12. Sri Aniruddha Kumar Singh has also placed reliance upon the decision of Apex Court in the case in P. Kartika Lakshmi vs. Sri Ganesh and Another, (2017) 3 SCC 347 referring para-7 wherein the Apex Court has held that the power invocation of Section 216 Cr.P.C. is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment. The Apex Court clarified that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 Cr.P.C. 13. Therefore, Sri Singh has further submitted that on the application of the petitioners/ accused the charge may not be deleted and since the learned trial court has given its finding/observation to the effect that the charge of Section 307 at this stage may not be deleted, therefore, there is no infirmity or illegality in the order dated 23.05.2023. 14. Having heard learned counsel for the parties and having perused the material available on record as well as having regard to the case laws so referred by the parties, which have been considered above, I am also of the considered opinion that at the time of framing charges it is incumbent upon the trial court to make scrutiny of the allegations and the material available on the record inasmuch as if, prima-facie, the material is available on record and after perusal of the same the learned trial court is of the opinion that such charge may be framed, the court may very well frame particular charge. Further, at the same time, it is also trite law that during the course of trial the learned trial court shall scrutinize all the charges so framed deeply and unless and until the charge/charges are proved beyond all reasonable doubts the accused persons may not be punished under such charge/charges. It is also needless to observe that during the course of trial all the parties shall be afforded an ample opportunity of hearing to adduce their evidence and to produce the material. Further, in the light of the dictum of Apex Court in P. Kartika Lakshmi (supra) the learned trial court has rightly rejected the application of the petitioners vide order dated 23.05.2023. 15. In view of the aforesaid observations, the instant petition is dismissed.