Court No. - 49
Case :- APPLICATION U/S 482 No. - 19127 of 2018 Applicant :- Shri Dalip Kapoor And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shashank Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Manish Tiwari and Sri Shashank Tripathi, learned counsel for the applicants and learned G.A. for the State.
Learned counsel for the applicants is permitted to correct the prayer clause during the course of the day.
The present application has been filed to quash the entire proceeding of Case No. 66435 of 2017 arising out of Case Crime No. 56 of 2015 (State Vs. Dalip Kapoor & others), under Sections 120B, 384, 406, 420, 467, 468, 471 IPC, Police Station Kotwali, District Kanpur Nagar including order dated 12.9.2017 as well as order dated 5.2.2018 passed in Criminal Revision No. 41 of 2018 (Dalip Kapoor and others Vs. State), pending in the court of learned A.C.M.M. Ist, Kanpur Nagar.
Upon earlier conclusion of investigation, the police had submitted a final report. While such final report remained pending before the learned Magistrate, the police appears to have conducted further investigation. However, in place of submitting a supplementary report, it appears from the communication dated 4.9.2017 (made by the investigating officer to the learned Special, C.J.M., Kanpur Nagar) that the prosecution then sought to withdraw the earlier final report submitted and replace the same with the charge sheet that was sought to be introduced upon further investigation.
It is objected by learned counsel for the applicants that such a course was not open to the investigating officer that all he could have done, was to submit a supplementary report and left it to the best judgment of the learned Magistrate to act thereon, after examining the material that had been relied upon by the prosecution alongwith final report submitted earlier.
However, the matter did not end there and the learned Magistrate by his order dated 12.9.2017 appears to have compounded the mistake by taking cognizance solely on the basis of the charge sheet/supplementary report submitted by the prosecution.
Perusal of the order dated 12.9.2017 and subsequent order dated 16.11.2017 does indicate that the learned Magistrate had not looked into material that was already existing on the prosecution file by way of final report and treated the same as rejected as withdrawn by the prosecution.
Though, the order dated 12.9.2017 does not make this clear, however, in the order dated 16.11.2017 the learned Magistrate has made a specific observation that the cognizance has been taken on the basis of charge sheet submitted after the prosecution had withdrawn the final report.
Learned G.A. fairly states that while it is open to the learned Magistrate to consider the entire material brought before him by means of original/final report as also supplementary report/charge sheet material, which would include the entire material that may have been collected during the investigation, the learned Magistrate could not have closed his eye to part of that material and acted on the other part.
Thus, no useful purpose would be served in keeping the application pending any further.
The orders dated 12.9.2017 and 16.11.2017 are set aside. The matter is remitted to the learned Magistrate to apply his mind to the entire material as has been brought on record by the prosecution including material contained in the first report (titled as the final report) and supplementary report (titled as the charge sheet) and pass fresh order in accordance with law, as expeditiously as possible, preferably within a period of two months from the date of the production of a certified copy of this order.
The present application is disposed of. Order Date :- 29.5.2018 Mini