Court No. - 81
Case :- APPLICATION U/S 482 No. - 10430 of 2019
Applicant :- Dev Narayan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Imran Ullah,Mohammad Khalid
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Imran Ullah, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
2. This Application under Section 482 Cr.P.C. has been filed with a prayer to stay the effect and operation of charge-sheet no. 02 of 2017 dated 3.11.2017 under Sections 394 I.P.C., Sections 7, 13 (1), 13 (A), 13 (B) of Prevention of Corruption Act submitted in pursuance of the F.I.R. dated 23.06.2017 under Sections 394 I.P.C. and Section 7, 13 (1), 13 (A), 13 (B) of Prevention of Corruption Act vide Case Crime No. 374 of 2017 P.S. Mughal Sarai, District Chandauli and also stay the effect and operation of the cognizance order dated 08.12.2017 passed by Special Judge (Anti Corruption Act), Varanasi in Special Trial No. 22 of 2017 under Sections 394 I.P.C. and Sections 7, 13 (1), 13 (2), 13 (A) and 13 (B) of Prevention of Corruption Act.
3. Main thrust of the argument of learned counsel for the applicant is that earlier this Court had passed an order dated 7.06.2018 in Application under Section 482 Cr.P.C. No. 20989 of 2018 in which following directions were given:-
“..... However, we feel constrained to obverse that the facts and circumstances as have been placed by the counsel appearing before us, are such that the matter deserves a deeper investigation into the case. The applicant was obviously not nominated in the F.I.R. and to the contrary another Constable Dev Kumar was made the accused. The Constable who was nominated as accused in the case is said to be very much part of the same service and it is not a case where it may be said that no such constable or person as Dev Kumar existed and it was simply a mis- description of the applicant's name. The way and the manner in which the initially nominated accused has been given a go by and the manner in which the applicant has been brought to fill in at his place looks quite weird, if not bizarre.
This Court does not propose to make any further comments in the matter, lest the same may cause any prejudice to either side. But we are of the considered opinion that the matter deserves further probe and a further investigation into the case. A deeper fact finding, vigilant investigation is the minimum that must be done in the matter and the entire details of such material and evidence that may be collected during the course of further investigation, must be submitted to the court below so that the court during the course of trial may adjudicate upon on the point of guilt or innocence of the accused or on the point of framing of charge on the basis of and with the help of more comprehensible, more complete and fuller evidentiary material in this regard.
The S.S.P. concerned is directed to entrust the further investigation into the case to a competent and efficient official and get the further investigation into the case done at the earliest. The resultant report of such investigation along with further evidence, oral or documentary that may be collected, shall be forwarded to the court concerned in the form prescribed as has been contemplated under Section 173 (8) of Cr.P.C. The concerned court below shall proceed thereafter in the matter in accordance with law.”
4. Citing above order, it is argued that when the copy of the said order was placed before the S.S.P., he did not assign further investigation in this matter to any competent and efficient official rather the same was entrusted to the same I.O. who had earlier conducted the investigation in this case and the said I.O. has not collected any credible additional evidence against the accused applicant and reiterated the same version in charge-sheet which is nothing but contempt of this Court. It was further argued by him that in-fact the applicant was not a member of the team headed by R.T.O., Chandauli, R.S. Yadav which is said to have intercepted the vehicle in question rather the said constable was one by the name, Dev Kumar which itself is mentioned in the F.I.R. and therefore, charge-sheet has been wrongly submitted which needs to be quashed.
5. In F.I.R., O.P. No. 2, Pankaj Rai has mentioned that on 24.03.2017 his truck had left with 'gitti' (pebbles) from Obra, Sonbhadra to Ghazipur being driven by his driver, Rajesh Patel. As soon as the said vehicle reached Tengda Mod at about 10:30 p.m., R.T.O., Sri R.S. Yadav and his team intercepted the said vehicle for being weighed at 'Dharam Kata' for which constables of R.T.O., Dev Kumar and Ajit took the said vehicle to 'Dharam Kata' and as soon as the said vehicle reached there, the engine of his vehicle stopped and could not be re-started. Getting impatient, the constable brought the driver, Rajesh Patel on the rear side of the truck, thereafter the said constable abused and had beaten him and Rs. 20,000/- in cash was demanded from the driver saying that they were very close to R.T.O., R.S. Yadav whereon the driver denied to make the said payment and then Dev Kumar and Ajit forcibly snatched Rs. 10,200/- from the pocket of the driver and gave threat that his vehicle would be brought at the P.S. and all the papers of the vehicle were also taken away, regarding this, driver had informed the informant, whereafter the informant had called on mobile phone to the R.T.O., R.S. Yadav on 24.03.2017 at 22:48 hours and complained about this incident but he disconnected the phone saying that no such occurrence had happened, thereafter the informant had telephoned the District Magistrate, Chandauli on 24.03.2017 in the night at about 22:59 hours, thereafter District Magistrate had told him to give a complaint in writing. There were several other complaints made against the said R.T.O. in respect of his having remained posted there for long time and was close to Samajwadi Party and also with regard to his having property worth crores of rupees and misusing his post i.e. indulging in huge corruption.
6. The submission made by learned counsel for the applicant in the affidavit that the applicant was not at all the member of the team of Sri R.S. Yadav who has allegedly seized the truck in question rather he was member of the team of Dr. Dilip Kumar Gupta, A.R.T.O. (Enforcement Team-II) and therefore was not at all concerned with the alleged challan of the truck which was done by Road Tax Officer as per F.I.R. The respondent no. 2 has lodged the F.I.R. naming the applicant on the basis of concocted story as the applicant even does not know the respondent no. 2 nor the applicant intercepted the said truck. The I.O. had recorded the statement of the informant wherein he stated that due to typing error, he has mentioned Dev Kumar instead of Dev Narayan. In parcha no. 12 dated 9.08.2016 of the Case Diary, the office of R.T.O., (Administration), Chandauli itself had mentioned that the applicant was in the team of A.R.T.O. (Enforcement) headed by Sri Radhey Shyam Yadav against whom F.I.R. dated 23.06.2017 has been lodged. In-fact, there was a constable by the name, Dev Kumar Yadav posted in Mirzapur at the border on the date of occurrence who had been transferred to Gorakhpur on 14.08.2017. The information dated 27.10.2017 given by A.R.T.O. (Administration), Chandauli mentions that applicant was not in the team of Radhey Shyam Yadav who was head of the Enforcement team Ist rather the applicant was discharging his duty in Enforcement team IInd headed by Dr. Dilip Kumar Gupta, A.R.T.O., (Administration). The applicant had moved a representation also before S.P., Chandauli on 2.11.2017 in this regard even that was not considered by the I.O. and only on the basis of statement of O.P. No. 2, the name of nominated accused, Dev Kumar has been excluded during investigation and on 3.11.2017, charge-sheet no. 2 of 2017 has been submitted against the applicant and one, Ajeet Kumar. At the time of incident, the applicant was posted at District, Jaunpur but was attached to Assistant Regional Traffic Officer (Enforcement) team IInd from 21.10.2016 to 31.03.2017 which is clear from the transfer letter dated 21.10.2016. On the date of occurrence, the applicant was in the team of A.R.T.O. (Enforcement) IInd, Chandauli which was headed by Dr. Dilip Kumar Gupta, A.R.T.O. (Administration) and he was not discharging his duty in the team-I headed by R.S. Yadav on the said date. The investigation in this case was done by Pradeep Singh Chandel, C.O., Sadar, Chandauli. It is further mentioned that earlier charge-sheet was submitted against co-accused, R.S. Yadav on 29.06.2017 and so far as investigation against the applicant is concerned, the same was proceeded on 3.10.2017. In the meantime, the applicant approached High Court and filed Criminal Misc. Writ Petition No. 21941 of 2017 in which vide order dated 12.10.2017, he was directed not to be arrested till submission of police report under Section 173 (2) Cr.P.C. The said order was noted by the Investigating Officer in S.C.D.-4 dated 16.10.2017 and after getting sanction for prosecution, the investigation was closed on 3.11.2017 vide S.C.D. No. 7. Feeling aggrieved by the charge- sheet, the applicant moved an Application under Section 482 Cr.P.C. No. 20989 of 2018 in which above quoted order was passed. The said order dated 7.06.2018 was communicated to the court concerned through application by the applicant whereafter the said order was noted in the C.D. vide S.C.D. No. 8 on 24.08.2018. It is further mentioned that in compliance of order passed by this Court neither the concerned S.S.P. paid any heed to it by entrusting the investigation to the competent and efficient official for further investigation rather in most mechanical manner, the investigation was taken by Pradeep Kumar Chandel on 24.06.2018 who had started the investigation in this case. The said I.O. enquired with respect to the presence of the applicant at the place of incident on 20.09.2018, as a proof thereof, S.C.D. dated 20.09.2018 is enclosed. It makes it clear that S.S.P. did not comply with this Court's order in letter and spirit and allowed further investigation to be conducted by concerned I.O. The said I.O. after having come to know about the High Court's order felt perturbed and then he met the applicant and threatened that he would see that, the charge-sheet is submitted against him and, hence, he conducted investigation in biased manner. The I.O. seems to have recorded statement of Dilip Kumar Gupta, A.R.T.O. which has been annexed as Annexure 15 and on 28.01.2019, it was noted by the I.O. in parcha that a notice was sent to the applicant for giving evidence but he did not come which is wrong as no such notice was given to him nor did he have any knowledge about it. The I.O. in mechanical manner again in parcha dated 4.02.2019 confirmed the charge-sheet sent by him earlier, copy of which is annexed as Annexure 17. It is also evident from S.C.D. 8 dated 24.06.2018 that the I.O. assumed further investigation in this case on his own without order of S.P., Chandauli and had not made any effort to meet senior officer, therefore it is prayed that entire proceedings need to be quashed.
7. During arguments, learned counsel for the applicant had taken court through S.C.D. No. 10 dated 20.09.2018 and S.C.D. No. 12 dated 26.10.2018 annexed at page no. 111 of the paper book in order to highlight that the further investigation was an eye-wash. In S.C.D. 10 dated 20.09.2018, it is mentioned that on 24.03.2017, the charge of A.R.T.O.-II was with Dr. Dilip Kumar Gupta, A.R.T.O. (Administration) who was having duty of 24 hours with whom applicants, Dev Narayan Yadav, Manoj Singh and Manoj Tripathi, Constables were present. In S.C.D. No. 12 dated 26.10.2018, it is recorded in the statement of Dr. Dilip Kumar Gupta, A.R.T.O. that on 24.03.2017, Constable, Dev Narayan Yadav, Manoj Singh and Manoj Tripathi were on duty and on the said date because of the post of Sahayak Sambhagiya Parivahan Adhikari-II (A.R.T.O.-II) being vacant, the charge of the said post was with him. He used to work mostly in the night and would not go for checking in the night. The Constables who were on duty with him on the said date remained present with him during the day. In the night whether applicant, Dev Narayan Yadav was with A.R.T.O., Radhey Shyam Yadav or not, he has no knowledge about it. Citing the said evidence, it is argued that these statements show that the applicant was not with A.R.T.O., R.S. Yadav as has been mentioned in the F.I.R.
8. On the other hand, learned A.G.A. has received instructions and copy of the case diary with him and has shown that in the statement of driver of the said vehicle i.e. Rajesh Patel, he has clearly stated the names of the applicant being the constable who had snatched Rs. 10,200/- from his pocket forcibly. Learned counsel for the applicant has not annexed the said statement. At this, this Court had made a query to the learned counsel for the applicant as to whether the statement of the said witness was annexed by him or not when the first application under Section 482 Cr.P.C. No. 20989 of 2018 was heard by this Court, he showed inability to tell in this respect that the same was annexed and this Court had passed order dated 7.06.2018 after having taken that aspect also into consideration. Time period was given to the learned counsel for the applicant to bring on record the fact that the said statement was brought to the knowledge of this Court while passing the order dated 7.06.2018. He could not place the same, hence it is deemed that the same was not annexed at the time of earlier hearing in this matter and without that statement being on record, the earlier order dated 7.6.2018 appears to have been passed. However, learned counsel for the applicants gave reply to this argument of learned A.G.A. that driver of the truck would not be knowing the applicant by face and by name and therefore, how could he recognize that it was applicant and not the other police constable and, therefore, simply because the said driver had taken the name of the applicant in his statement under Section 161 Cr.P.C. before I.O. would not mean that the applicant was involved in this case.
9. I do not find that the argument of learned counsel for the applicant is having any force because this could be subject matter of evidence as to whether statement of the driver from whom, money was snatched actually includes the accused applicant and as to how he could identify him to be Dev Narayan and not as other constable, all these are disputed facts which cannot be looked into at this stage in proceedings under Section 482 Cr.P.C.
10. As regards the objection of the learned counsel for the applicant that the investigation of this case was not assigned by S.S.P./S.P. concerned to any competent and efficient official and the same was allowed to be conducted by the I.O. who had earlier conducted the said investigation, this Court's view is that there was no such kind of direction that any particular person would conduct further investigation in this case. The word used by this Court were 'Any competent and efficient person'. By that expression, it cannot be concluded that the earlier Investigating Officer was not considered by the S.S.P./S.P. to be competent and efficient. Moreover, I find that nothing has come on record to suggest that there was any previous enmity between I.O. and the applicant, though it is stated in the affidavit that pursuant to this Court's order dated 7.06.2018 when the further investigation was to be conducted, a threat was given by the earlier I.O. that he would ensure that the applicant is charge-sheeted but I do not see any concrete proof on record that the applicant was having any enmity with the I.O. and that there was any infirmity in the investigation.
11. The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
12. From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
13. The prayer for quashing the proceedings is refused.
14. However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed without being influenced by the observations of this Court.
15. The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
16. With this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date:-28.11.2019/A. Mandhani