1. By means of this application, the applicant has prayed for quashing of the order dated 10.8.2005 passed by Secretary, Home (Police), Uttar Pradesh, Lucknow and the charge sheet no. 28 of 2005 arising out of Case Crime No. 84 of 2001, under Section 218 IPC, P.S. Kotwali, District Banda as well as the cognizance orders dated 20.9.2005 and 26.9.2005 passed by learned Chief Judicial Magistrate, Banda in criminal Case No. 3136 of 2005.
2. The factual matrix of the case, relevant for the disposal of this application is that on 29.6.1995 the applicant was posted as Circle Officer (Police), Naraini, District Banda and on 7.8.1995 the applicant was transferred from District Banda to the Intelligence Department and was posted in Intelligence Head Quarter, Lucknow but again on 30.1.1996 he was transferred back to District Banda as Circle Officer (Police), Naraini, Banda. It is alleged that on 29/6/1995, an FIR was lodged by one Parashuram Verma, Station Officer, P.S. Kotwali Dehat, District Banda against Mayyadeen, Chhota, Ram Prakash, Ram Babu Bhat regarding an incident dated 28.6.1995 allegedly committed at about 11 p.m. vide Case Crime No. 211 of 1995 under Sections 147, 148, 149, 307 IPC, Case Crime No. 212 of 1995, under Section 25 of Arms Act and Case Crime No. 213 of 1995, under Section 30 of Arms Act. The investigation of aforesaid cases was carried out by one Sri A. B. Singh, Deputy Superintendent of Police (Circle Officer), Baberu, District Banda vide order dated 30.6.1995 passed by Superintendent of Police, Banda. It is further alleged that on 27.8.1995, the investigation was transferred from Mr A. B. Singh, Circle Officer, Baberu to another Circle Officer (Sadar), District Banda namely Kripa Ram Yadav and this fact was noted in the case diary at Parcha No. 5 by the earlier Investigating Officer. The newly instructed Investigating Officer recorded the statement of various witnesses during his investigation. It is further alleged that after the retirement of Kripa Ram Yadav, the Superintendent of Police, Banda directed one Salig Ram Verma, the Circle Officer, City, Banda to conduct the investigation. It is further alleged that on 4.2.2996, the Superintendent of Police, Banda modified his earlier order dated 19.1.1996 and transferred the investigation to the applicant, who was then posted as Circle Officer, Naraini, Banda. The applicant is said to have took the investigation in his hand on 6.2.1996 and made the entry in this respect in the case diary at parcha no. 11 on 6.2.1996 and completed the investigation and finally submitted the charge sheet against Ram Prakash, Chhota, Ram Babu Bhat on 6.6.1996 under Sections 147, 148, 149, 307 IPC and against Kamal Singh under Section 30 of Arms Act in the court upon which learned Magistrate took the cognizance under Section 190 Cr.P.C. and thereafter committed the case to the court of session where the case was registered as Sessions Trial No. 254 of 1996 (State Vs Chhota and others) and accordingly trial court passed an order dated 24.1.2001 directing framing of charges against the accused persons.
3. It is further alleged that thereafter one Smt Suganiya wife of Bhaluwa Kumhar lodged an FIR after the death of one of the injured namely Maiyyadeen on 29.6.1996 against Station Officer of Police Station Kotwali Dehat, District Banda namely Parasuram Verma and other police personnel which was registered as Case Crime No. 214 of 1995, under Section 302 IPC, P.S. Kotwali Dehat, District Banda. Which was initially investigated by Kripa Ram Yadav, the Circle Officer, Sadar, District Banda pursuant to the order dated 30.6.1996 passed by Superintendent of Police, Banda (In short S.P., Banda) till his superannuation and thereafter vide order dated 19.1.1996 of S.P. Banda the Investigation was given to one Salig Ram Verma, the Circle Officer, Banda and further by the order dated 4.2.1996 of S.P. Banda, the applicant was deputed to conduct the investigation of the said case.
4. Applicant initiated the investigation on 6.2.1996 but again on 7.2.1996, the Superintendent of Police, Banda passed an order that the Investigation of the said case will now be conducted by the Inspector ACCO, Jhansi. The said fact was noted by the applicant in Parcha No. 6 on 8.2.1996 and thereafter the applicant did not prepare any parcha in the said case. Subsequently,, the investigation was transferred to the CBCID. In the meantime the local police of District Banda submitted the charge sheet under Section 304 IPC 13.10.1996 against Sri Parasuram Verma, the Station Officer of Police Station Kotwali Dehat, Banda whereupon the cognizance was taken and the matter was committed to the court of session where the case was registered as Session Trial No. 518 of 1995. Respondent no. 2, J. P. Yadav, Inspector of CBCID, Section, Allahabad moved an application requesting the court to give him the prosecution papers in connection with the investigation in the matter pursuant to the direction of the State Government. The said request was not heeded by the learned court and the court below rejected the application by passing a detailed order on 26.9.1997.
5. It is alleged that the respondent no. 2 also completed the investigation of Case Crime No. 214 of 1995, which was registered as C.B. No. 383 of 1997, under Sections 147, 148, 149, 452, 342, 218, 304 IPC and completed the investigation and prepared the parcha on 26.11.2001. However, on 14.11.2000, the Government sent a letter to the Superintendent of Police, CBCID, Lucknow informing him of his decision to withdraw the prosecution of Case Crime No. 211 of 1995 and 213 of 1995 and the Sessions trial arising therefrom, which was pending in the court of Special Judge, Banda. The said letter was communicated by the CBCID to the District Magistrate, Banda. In the meantime, learned ADGC (Criminal), Banda moved an application for withdrawal of the said case on 28.3.2001 and on the same date court below passed an order acquitting the accused persons chargesheeted in the said case.
6. However, respondent no. 2 is said to have sent a letter to the Superintendent of Police, Banda to register an FIR against the applicant under section 218 IPC alleging that the applicant had not properly investigated the case Crime No. 211 of 1995, under Section 147,148,149,307,412 IPC and Case Crime No. 213 of 1995, under Section 30 of Arms Act and by forging the evidence submitted the charge sheet against accused persons namely Ram Prakash, Ram Babu, Chota and one Kamal Singh, and the prosecution against these accused persons was later on withdrawn by the Government vider order dated 14.11.2000. Whereupon an FIR was lodged against the applicant vide Case Crime No. 84 of 2001, under Section 218 IPC at P.S. Kotwali Dehat, District Banda. After obtaining necessary sanction, the investigation was conducted by the CBCID and subsequent to the investigation charge sheet was submitted on 20.9.2005 before the court of learned CJM, Banda, upon which cognizance was taken by the learned Magistrate vide orders dated 20.9.2005 and 26.9.2015 against the applicant. These orders and the subsequent proceedings are under challenge before this court.
7. Heard Sri O. P. Singh, learned Senior Advocate assisted by Sri S.P. Srivastava, learned counsel for the applicant and learned AGA for the State.
8. It is contended by learned counsel for the applicant that the applicant being the Investigating Officer of Case Crime No. 211 & 213 of 1995 has rightly submitted the charge sheet against the accused persons upon which the court below took cognizance and on committal learned trial court proceeded to frame charges against the applicants and fixed the date 28.03.2001 for hearing but the ADGC (Criminal) moved an application under Section 321 Cr.P.C. for withdrawal of the case and the trial court permitted withdrawal of the Sessions Trial No. 254 of 1996 and Sessions Trial No. 255 of 1996 and also acquitted the accused Chhotey, Ram Prakash and discharged one of accused namely Komal Singh vide order dated 28.3.2001 without perusing the material on record.
9. It is further contended by learned counsel for the applicant that the applicant took the investigation on 6. 2.1996 and he did not record any evidence but simply recorded the statement of accused persons and submitted the charge sheet on the basis of the investigation conducted by two earlier Investigating Officers. It is further submitted that there is no allegation against the applicant either in the application of ADGC (criminal) moved before the learned Sessions Judge or in the letter of State Government dated 14.11.2000 that the applicant conducted a fishy investigation and prepared false evidence in submitting the charge sheet. It is further submitted that the proceedings of Criminal Case No. 313 of 2005, under Section 218 IPC against the applicant is nothing but an abuse of the process of the court.
10 It is further submitted that no proper sanction under Section 197 Cr.P.C. was obtained for initiating prosecution against the applicant and further the matter was investigated by an officer who is lower in rank than the applicant who was at that time Deputy Superintendent of Police hence the investigation carried out by the respondent no. 2 is illegal in view of the clause 1(3) of the paragraph 486 of the UP Police Regulations and is liable to be quashed.
11. Learned counsel for the applicant strenuously contended that the allegations in the FI.R. even if they are taken at their face value and accepted in their entirety do not prima facie constitute the offence under Section 218 I.P.C. Thus, taking cognizance of an offence under Section 218 I.P.C. by the learned Magistrate is without any material on record.
12. Learned A.G.A. repudiates the submissions made as above and contended that the applicant while posted as circle officer by misusing his position forged the evidence and illegally roped the accused persons in false criminal case. The respondent no. 2 has collected sufficient credible evidence prima-facie showing complicity of the applicant in the crime and therefore, at this stage it cannot be said that no offence is made out against the applicant.
13. Learned A.G.A. has further argued that at this stage the disputed defence available to the applicant cannot be considered for deciding the application under Section 482 of the Code. The scope of exercising inherent powers under Section 482 is very limited. Section 482 itself laid down the scope under which the powers can be exercised which are as under :
(I) to give effect to an order under the Code;
(ii) to prevent abuse of the process of Court; and
(iii) to otherwise secure ends of justice.
The case of the applicant does not fall under any of the conditions enumerated as above and therefore, the application deserves to be dismissed with special cost.
14. I have given my thoughtful consideration to the rival submissions made by the learned counsel for both the sides and I have also been taken through the materials on record.
15. Perusal of the material on record as also the facts noted herein above would disclose that it is not disputed that the investigation of Case Crime No. 211 of 1995 under Sections 147, 148, 149, 307 IPC, Case Crime No. 212 of 1995, under Section 25 of Arms Act and Case Crime No. 213 of 1995, under Section 30 of Arms Act was initially conducted by three different Investigating Officers and finally vide order dated 06.2.1996 the applicant is said to have taken the investigation in his hand and made the entry in this respect in the case diary at parcha no. 11 on 6.2.1996 and after going through the case diary scribed by his predecessors completed the investigation and finally submitted the charge sheet against Ram Prakash, Chhota, Ram Babu Bhat on 6.6.1996 under Sections 147, 148, 149, 307 IPC and against Kamal Singh under Section 30 of Arms Act on the basis of available evidence on record. Not only this, the applicant is said to have noted the entire evidence collected by his predecessors in the case diary at Parcha No. 12 on 12.02.1996. However, subsequent parchas of case diary further reveal that the applicant while doing the investigation of aforesaid case crimes made a request to the Superintendent of Police, Banda to transfer the investigation of aforesaid cases to other Circle Officer on the ground of change of his Circle. Parcha No. 14 of the Case diary further discloses that the Investigation of Case Crime No. 214 of 1995 under Section 302 IPC was transferred to C.B.C.I.D. on 03.021996 and looking to the gravity of offence applicant himself requested the Superintendent of Police, Banda to transfer the investigation of case Crime Nos. 211 of 1995, 212 of 1995 and 213 of 1995 from Civil Police to CBCID. The available material on record would further disclose that the applicant had been entrusted with the investigation in the year 1996 and prior to this, the Investigation was carried out out by three different Investigating Officers. The applicant is said to have taken the accused persons on remand from jail who were in jail in connection with some other cases and recorded their statement and finding that prima facie cognizable offence is made out against the accused on the basis of available material on record, submitted the charge sheet against them upon which learned Magistrate took cognizance and trial was initiated.
16. Perusal of the record would also disclose that the State Government vide order dated 14.11.2000 directed the State Prosecution to withdraw the prosecution for Crime Nos. 211 of 1995 & 213 of 1995 (Sessions Trial No. 254 of 1996) and acting upon the said letter Public Prosecutor moved an application under Section 321 Cr.P.C. for withdrawal of the cases and the trial court permitted withdrawal of the Sessions Trial No. 254 of 1996 and Sessions Trial No. 255 of 1996 and also acquitted the accused Chhotey, Ram Prakash and discharged one of accused namely Komal Singh vide order dated 28.3.2001.
17. In order to attract Section 218 IPC the following three relevant essential ingredients of that Section must apply:--
(i) The public servant must be charged with the preparation of any record or other writing;
Thus, for making section 218 IPC applicable, preparation of record or other writings must be the official duty of the public servant. It is pertinent to point out that investigation of the case was being conducted by the applicant in his official capacity. However, major evidence had been collected by the previous Investigating Officers. It is stated that barring the statements of accused persons which in no manner could be called admissible evidence for trial purpose in terms of Indian Evidence Act, no other statement was recorded by the applicant. He had formed opinion on the basis of evidence collected by other Investigating Officers. He was otherwise competent to form an opinion. But forming opinion will certainly not attract the ingredients of Section 218 IPC. There is no evidence of forging any evidence. The accused persons were charge-sheeted on the materials collected over by the earlier Investigating Officers. To constitute an offence under Section 218 IPC, it is not enough to prove that any entry or over writing made is incorrect. It is essential to prove that the entry was made with intention to cause or likely to cause loss or injury to some person. No such evidence reflecting the intention of the applicant otherwise was ever collected by the Investigating Officer/respondent no. 2. Apparently, the order of taking cognizance under Section 218 I.P.C. by the Magistrate is without any substance. The allegations made in the F.I.R. even if they are taken at their face value and accepted in their entirety do not prima facie constitute offence under Section 218 I.P.C. against the applicant.
18. In over all view of the matter, it appears that present criminal proceedings has been launched against the applicant without any lawful basis. Almost entire evidence was collected by previous investigating Officers. Applicant formed opinion on the basis of evidence collected by previous investigators. No body can force investigating officer to form a particular kind of opinion. Applicant was free to form any opinion after interpreting available evidence. There is no whisper that any evidence was forged, fabricated or mutilated. In fact applicant came very late in the investigation.
19. It is pertinent to point out that the Apex Court in State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, has held that investigation of an offence is within the domain of police officer. The power of Investigating Officer is unfettered so long these power are legitimately exercised in strict compliance with the provision of Cr.P.C. In Bhajan Lal's case (supra), the Apex Court has held as under:-
"The investigation of an offence is the field exclu- sively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliter- ating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted."
20. If the police officer transgressed the limits of propriety then of course suitable action can be taken by the courts but it is evident that investigating Officer cannot be asked to interpret the material collected during course of investigation in a particular fashion. He can form any opinion on the available material. Whether that opinion will sustain during the course of trial or not is different matter altogether. In the present dispute, it is evident that almost entire factual evidence was collected by the previous Investigating Officers. Present applicant formed particular opinion on the basis of available material and he cannot be held criminally liable for forming that particular opinion.
21. For attracting ingredients of Section 218 IPC, the material must show that the officer had made incorrect record or writings with intention to save a person from punishment or property from forfeiture. No such ingredients is available in the present case. Now the question is; Can a person be booked under Section 218 IPC for forming opinion on the basis evidence collected by other persons for which he was authorized by law ? There is no evidence that the applicant framed incorrect records or other writings. Allegation of mens-rea is completely absent. Ingredients of Section 218 IPC are not available. This practice of initiating criminal case without showing any material of malafide motive is wrong and cannot be encouraged. If any officer faithfully discharges his duty then he or she cannot be criminally prosecuted, even if his/her decision turn out to be wrong. It is strange that the evidence was collected by others and yet the prosecution was launched only against the applicant.
22. Learned counsel for the applicant has also claimed that his matter was investigated by the officer of lower in rank than the applicant who was at that time Deputy Superintendent of Police hence the investigation carried out by respondent no. 2 in view of clause 1(3) of Paragraph 486 of the UP Police Regulations is bad in law. He has relied upon the judgment of S. P. Singh Vs State of UP and others, AWC 1987 page 1099. I am afraid, this judgment would be of no help to him as the Apex Court in State of UP Vs Surendra Pal Singh, 1989 AIR 811 has clearly held that this rule is applicable only in departmental proceedings and that the criminal prosecution cannot be set aside on the ground that the investigation had been conducted by a person lower in rank of that of applicant. However, it is apparent that no offence infact is made out against the applicant from the facts of the case disclosed herein above. Thus, from the facts of this case disclosed as above, it is evident that the prosecution of the applicant is absolutely an abuse of the process of the court and accordingly the application deserves to be allowed and the charged-sheet so submitted by the CBCID/respondent no. 2 is liable to be quashed so far as taking cognizance under Section 218 I.P.C. against the applicant.
23. A bare perusal of cognizance order passed by the learned Magistrate would also disclose total non- application of mind by him. In view of above , this Court is of the firm view that it is a fit case where this court has to exercise its extraordinary inherent jurisdiction under Section 482 Cr.P.C. to quash the impugned charge-sheet and the order of cognizance thereon. The application is accordingly, allowed. The charge-sheet no. 28 of 2005 arising out of Case Crime No. 84 of 2001, under Section 218 IPC, P.S. Kotwali, District Banda as well as the cognizance orders dated 20.9.2005 and 26.9.2005 passed by learned Chief Judicial Magistrate, Banda in criminal Case No. 3136 of 2005 against the applicant are hereby quashed.
Order Date :- 12.5.2016 RavindraKSingh (Justice Bharat Bhushan)