Reserved
Court No. - 54
Case :- APPLICATION U/S 482 No. - 25574 of 2018 Applicant :- Basdev Opposite Party :- State of U.P.
Counsel for Applicant :- Vishesh Kumar Counsel for Opposite Party :- G.A.,Sharad Kumar Srivastava
Hon'ble Rajiv Joshi,J.
Heard Sri Vishesh Kumar, learned counsel for the applicant, Sri Sharad Kumar Srivastava, learned counsel for the opposite party nos. 2 to 10 and learned AGA for the State.
The present 482 Cr.P.C. application has been filed for quashing the order dated 1.6.2016 passed by Sessions Judge, Fatehpur in Criminal Revision No. 76 of 2016 (Vasudeo Vs. State of U.P. & Ors) whereby the revision filed by the applicant was dismissed affirming the order dated 2.6.2015 passed by Additional Chief Judicial Magistrate, Fatehpur in Case Crime No. 12-A of 2001 (State of U.P. Vs. Shivram & Ors) by which the Magistrate has refused to take cognizance of the supplementary charge-sheet.
The facts as reflects from the record are that with regard to the incident dated 11.2.2001 at about 7:00 a.m. while the family of the informant Maya Devi w/o Basdev, were sitting by the fire, the accused persons /O.P. Nos. 2 to 10 assaulted them with “lathi and dandas” consequently, they received injuries, which were got medically examined at District Hospital, Fatehpur. An application was filed by the applicant under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate for investigating the matter by lodging an F.I.R. against O.P. Nos. 6 to 10. The said application was finally rejected by the Magistrate. Subsequently, the said order was challenged by the applicant in Criminal Revision No. 1701 of 2001 which was allowed by the revisional court vide order dated 22.5.2009. Thereafter, a First Information Report was registered on 17.6.2011 under Sections-147, 148, 149, 308, 394, 307, 325, 323, 504, 506 IPC at Police Station-
Chandpur, District- Fatehpur against the O.P. Nos. 2 to 10. The police after investigation submitted a charge-sheet against the four accused persons namely Shiv Ram, Bharti, Vivek and Balwant under Sections- 325, 323, 504, and 506 I.P.C. and the Magistrate took cognizance on 26.7.2011 and a case was registered being Criminal Case No. 463 of 2001. After the cognizance was taken, an application was moved by the informant/applicant for further investigation which was rejected by the Additional Chief Judicial Magistrate vide order dated 6.9.2011. Against that order, Revision No. 163 of 2011 was filed before the Sessions Judge, Fatehpur which was allowed vide order dated 22.11.2011, by which matter was remanded to the Magistrate observing that the matter will be considered afresh after hearing the applicant and the order dated 6.9.2011 was set aside. Thereafter, the Magistrate, vide order dated 13.8.2012 passed the order for further investigation. Against the said order, Revision No. 121 of 2012 was filed by the opposite parties which allowed vide order dated 7.9.2012 and the Magistrate was directed to pass speaking order. Subsequently, Magistrate, passed an order directing the police concerned for further investigation vide order dated 6.12.2012. The said order was challenged in Revision No. 202 of 2012 but in the meantime, further investigation was concluded by the police and supplementary charge- sheet was submitted along with supplementary case diary against five additional accused persons namely Santosh, Gaya, Ramashanker, Gajodhar Smt. Pushpa and Premchand under Sections-147, 148, 308, 325, 504, 506 and 323 IPC at Police Station- Chandpur, District- Fatehpur. On 31.8.2012, notices were issued under Section 170 Cr.P.C. upon the accused persons. The order directing for further investigation dated 6.12.2012 was set aside in Revision No. 202 of 2012 by the Sessions Judge, Fatehpur and the matter was remanded back to the Magistrate to pass speaking order on the application for further investigation and subsequently, the order for further investigation was rejected by the Additional Chief Judicial Magistrate vide order dated 2.4.2014.
An application was filed by the applicant for taking cognizance on the supplementary charge-sheet as well as for making supplementary case diary as the part of the case. Thereafter, the said application was rejected by Magistrate vide order dated 2.6.2015 Against the order dated 2.6.2015, a revision being Revision No. 76 of 2015 was filed which was also dismissed by the Sessions Judge vide impugned order dated 1.6.2016 affirming the order dated 2.6.2015 passed by Additional Chief Judicial Magistrate.
Both these orders i.e. the order of the Magistrate rejecting the application for taking cognizance on the supplementary charge-sheet and accepting the supplementary case diary as part of the case, as well as the revisionsal order dated 1.6.2016 are impugned in the present application.
Contention of learned counsel for the applicant is that initially charge-sheet was filed against four persons/accused under Sections- 325,323,504 and 506 IPC and thereafter supplementary charge-sheet has been filed by the police after further investigation against five accused persons under Sections- 147, 148, 308, 325, 323, 504, 506 IPC, therefore, the Magistrate should have taken the cognizance and the supplementary case diary should have been made a part of the record.
On the other hand, learned counsel for opposite party nos. 2 to 10 has justified the impugned orders by stating that the order passed by the Magistrate as well as revisionsal order have been passed after considering each and every aspect of the matter and no interference with the same is required under Section 482 Cr.P. C. application.
I have considered the rival submissions raised by learned counsel for the parties and perused the record.
The record reveals that the further investigation was conducted by the police pursuant to the order dated 6.12.2012 passed by the Additional Chief Judicial Magistrate and supplementary charge-sheet was filed under Sections- 147, 148, 308, 325, 323, 504, 506 IPC against the five accused persons. The order of the Magistrate for directing for further investigation was set aside in Revision No. 202 of 2012. The said order passed by the revisional court has attained finality between the parties.
The further investigation was conducted on the basis of the order passed by Magistrate which was set aside subsequently in revision. Hence, the supplementary charge-sheet filed by the police under Sections- 147, 148, 308, 325, 323, 504, 506 IPC is nonest and no cognizance can be taken on the basis of said order under the aforesaid sections against five accused/opposite parties.
It is well settled that after the cognizance has been taken by the magistrate, the police has no power to further/re-investigate the matter. In the instance case, since further investigation was made by the police on the basis of the order passed by the Magistrate which was later on set aside in Revision No. 202 of 2012, therefore, the Magistrate by the impugned order has rightly refused to take cognizance of the supplementary charge-sheet.
In view of the above, there appears to be no illegality or infirmity in the orders impugned. The application lacks merit and is accordingly dismissed.
Order Date :- 27.11.2019 Akbar