Court No. - 79
Case :- APPLICATION U/S 482 No. - 43326 of 2019 Applicant :- Hamveer Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Saxena Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
1. Heard learned counsel for the applicants and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the impugned order dated 29.06.2019 passed by learned Additional Sessions Judge, Court No. 7, District - Budaun in Session Trial No. 450 of 2017 (State of U.P. Vs. Hamveer Singh and others) arising out of Case Crime No. 326 of 2014, under Section 302/34 of IPC, Police Station - Jareefnagar Sahaswaan, District-Budaun.
3. The facts in brief of this case are that on 12.04.2014 at about 06:30 P.M. Hamveer Singh, Prem Pal, Shreepal sons of Mahaveer Singh, Jitendra Singh son of Prem Pal, all residents of village Simrai, Police Station – Jareef Nagar, District Budaun and they all ambushed on complainant and his brother Teeti. Accused Hamveer Singh fired gun shot on Teeti who died on spot. The matter was registered and investigation was done. On 25.07.2014 charge sheet was submitted and as per the charge sheet Shreepal son of Mahaveer was found accused of offence under Section 302/34 of IPC and in the said charge sheet dated 25.07.2014 the names of other accused - Hamveer, Prem Pal and Jitendra are mentioned but it is not mentioned as to what charges are levelled against them. From a perusal of the charge sheet, it appears that Hamveer Singh has not been found accused of offence under Section 302/34 IPC although in the First Information Report there is a specific allegation against him. It is also not mentioned in the charge sheet that Shreepal is accused and other accused persons are innocent.
4. After submission of the charge sheet on 25.07.2014, learned Magistrate has taken cognizance on 29.08.2014 and since it was a case under Section 302 IPC, the matter was committed for trial to the court of learned Additional Sessions Judge on 27.09.2017.
5. On 29.06.2019 an application paper No. 9 Kha under Section 173 (8) Cr.P.C. on behalf of accused Hamveer was presented before the learned Additional Sessions Judge, Court No. 7, Budaun. While rejecting the said application, vide impugned order dated 29.06.2019, the learned Sessions Judge has observed thus:-
"वर्त मान प्रार्थ नापत्र प्रार्थ) हमवीर पुत्र महावीर , निनवासी ग्राम सिसमरई, र्थाना जरीफ नगर, सिजला बदांयू की ओर से अंर्तग र्त धरा १७३(८) दंड प्रनि*या संनिहर्ता में प्रस्र्तुर्त निकया गया है. चूंनिक निवद्वान मुख्य न्यायियक मसिजस्ट्रेट, बदांय द्वारा प्रस्र्तर्तु प्रकरण में के स डायरी र्तर्था समस्र्त पुलिलस प्रपत्रों का अवलोकन करने के उपरांर्त प्रर्थम दृष्टया मामला बनर्ता पार्ते हुए आरोपपत्र पर प्रसंज्ञान लिलया गया है उसके पश्चार्त पूण रूप से संर्तुष्ट होर्ते हुए मामला सत्र न्यायालय द्वारा परीक्षण पार्ते हुए उसको सत्र सुपुद निकया गया है र्तर्था वर्त मान में मामला सत्र न्यायालय में निवचाराधीन है और आरोप के स्र्तर पर है. अर्तः वर्त मान स्थिस्र्थयिर्त में इस स्र्तर पर प्रार्थ ना पत्र कागज संख्या ९ ख अंर्तग र्त धरा १७३ (८) दंड प्रनि*या संनिहर्ता निवयिधक रूप से संधाऱ्य नहीं है और उक्त प्रार्थ ना पत्र को स्वीकार निकये जाने का कोई पया प्त आधार न होने के कारन प्रार्थ ना पत्र निनरस्र्त निकये जाने योग्य है.”
6. The learned AGA appearing for the State has supported the impugned order. On the other hand, learned counsel for applicants has contended that the learned court below has illegally rejected the application under Section 173(8) of Cr.P.C.
7. Section 173 (8) of Cr.P.C., which reads as under:-
“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).”
8. From a perusal of the Section 173 (8) quoted above, it is evident that there is not any mention of word ‘complainant’ or ‘accused’ or ‘any person’. This provision appears not to have been used by complainant, accused or any person. What this provision provides is that after submission of the charge sheet, in case, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2). In the present case it appears that the application under Section 173(8) Cr.P.C. was not moved before the Magistrate and it was moved before the learned Additional Sessions Judge where the Session Trial is pending and as such, the application was heard and decided by the learned Trial Court.
9. The Hon’ble Supreme Court in a landmark decision in the case of Vinubhai Haribhai Malaviya vs The State Of Gujarat, JT 2019 (10) SC 537 in para – 38 has observed thus:-
“…...There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156 (1), Section 2(h), and Section 173(8) of the Cr.PC, as has been noticed herein above, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law ”
10. It is evident from the above observation made by the Apex Court that it is the discretionary power of the Magistrate under Section 173(8) Cr.P.C. to order or not for further investigation on the facts of each case and in accordance with law. In the present case, police has not come forward with a case that they have obtained further evidence and that there remains some more evidence to be collected or recorded after submission of the charge sheet. The application under Section 173 (8) was moved by accused, which was not found maintainable by the learned Sessions Judge and was rejected by the impugned order.
11. In view of the above, this Court does not find any illegality, infirmity or abuse of process in the impugned order.
12. The application under Section 482 Cr.P.C. is misconceived and is hereby dismissed.
Order Date :- 28.11.2019 Mini/LBY