Court No. - 72
Case :- APPLICATION U/S 482 No. - 18271 of 2017 Applicant :- Hemant Kaushik Alias Tinku Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shishir Tandon Counsel for Opposite Party :- G.A.,Rajneesh Pratap Singh
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Shishir Tandon, learned counsel for the applicant; Sri Ankit Srivastava, learned AGA for the State and; Sri Rajneesh Pratap Singh, learned counsel for the opposite party no.2.
2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 25.05.2017 passed by the learned Sessions Judge, Gautam Budh Nagar in Session Trial No. 197 of 2017 (State of U.P. Vs. Hemant Kaushik), arising out of Case Crime No. 02 of 2017, under Sections 364, 302 and 201 I.P.C., Police Station- Rabupura, District- Gautam Budh Nagar.
3. Learned counsel for the applicant submits, the present applicant has been falsely charged with the offence of abduction and murder of Madhuri. According to him, an FIR was lodged by the father of the deceased on 01.01.2017, who had specifically named Rahul, Robin, Amit and Saurabh as the four persons, who had abducted the deceased on 23.12.2016. Such statements are also stated to have been recorded (of the eye-witness named in the first information report). Further, in the FIR itself, the informant had specifically alleged that the police had deliberately tried to expung the name of Rahul, Robin, Amit and Saurabh, and had made a wrong transcript of the application made by the informant with respect to the offence alleged. Then, he has submitted, the applicant was arrested on 06.01.2017. Only for the purpose of helping out the main accused it had been claimed that the body was recovered at the pointing out of the applicant. Though the police claims that the body of the deceased was recovered in the night of 06.01.2017 at about 11:40 P.M., the informant had earlier made an application to the police for making a video-recording of the post-mortem. That application is stated to have been filed on 05/06.01.2017 i.e. prior to the arrest of the applicant. Third, it has been submitted, the statement of Urmila Devi was first recorded on 20.02.2017. According to the investigating agency, she had first informed the police that the deceased used to make use of her mobile phone. Acting on that information, the Call Details Record (C.D.R.) of the applicant's mobile phone are claimed to have been obtained whereafter it first became known to the investigating officer as to the relationship between the applicant and the deceased. Thus, it has been submitted, the entire prosecution story that the body of the deceased was recovered on the pointing out of the applicant is concocted. In this regard, it has also been submitted that the said Urmila Devi died years ago and the purported statement of the said Urmila Devi recorded in the case- diary is bogus. Last, it has been submitted, in any case, the applicant being an accused person lying in jail, he ought to have been granted the facility of legal assistance before framing of charge in view of specific application filed on 25.05.2017. Without passing any order on that application, the learned court below has proceeded to frame the charges against the applicant.
4. Opposing to the above application, learned AGA would submit, insofar as the FIR allegations are concerned, they are not the gospel truth. The informant made certain allegations, based on suspicion or whatever information he may have had at that time. Further, the investigating agency was bound to conduct fair and impartial investigation. Following the leads that became available upon due diligence being practised by the investigating officer, it became known that the deceased used to visit her aunt Geeta and also made regular use of her mobile number 9897170196. Upon obtaining the C.D.R. of that phone number, it became known that the number on which the deceased used to contact, was that of the present applicant. Upon further investigation, it was revealed, the number of the applicant (on which the deceased used to make call), was utilized to make calls for only two numbers, one being used by aunt of the deceased and the other, by the informant. Therefore, merely because contrary allegations may have been made in the first information report, the prosecution cannot be faulted as the same arises on fair and impartial investigation. Second, it has been submitted, there is no discrepancy in the recovery of the body of the deceased, which was only at the pointing out of the applicant. In this regard, reliance has been placed on the recovery memo and the statement of Munesh Kumar. These documents establish that the recovery was made in the intervening night of 06/07.01.2017. Merely because the informant may have given the wrong description of the date on an application filed by him seeking videography of the postmortem, it will not ever be relevant to falsify the recovery memo itself. Third, it has been submitted, there is no discrepancy with respect to the death of Urmila Devi, inasmuch as, during investigation, initially, Geeta (aunt of the deceased) described herself as Urmila Devi. Subsequently, the said fact was clarified by the said Geeta in her statement recorded on 13.04.2017, a copy of which has been annexed with the counter affidavit.
5. As to the last submission advanced by learned counsel for the applicant, it has been submitted, no real prejudice has been caused to the applicant, inasmuch as, in the facts of the present case, there is no error in the framing of charge against the applicant.
6. Similar submissions have been advanced by the learned counsel for the opposite party no.2.
7. Having heard learned counsel for the parties and having perused the record, in the first place, no definite conclusion can be drawn, at this stage, whether it was the applicant or it was Rahul, Robin, Amit and Saurabh, or all of them who may have committed the crime. These are essentially matters of fact on which no interference is warranted in the proceedings under Section 482 Cr.P.C., as that necessarily involves appreciation of evidence, which is yet to be led to reach. Conclusions of fact on the basis of part of the case-diary material by overlooking or ignoring, the other would not fall within the exercise of the jurisdiction of the proceedings under Section 482 Cr.P.C. Though, it may remain open to the trial court to sift and weigh through the entire case-diary material while considering discharge in the appropriate facts of a case, if such application is filed at the appropriate stage. As to the recovery of the body of the deceased, there appears absolutely no discrepancy, at this stage, inasmuch even if no statement may have been recorded of the said Geeta (initially referred to as the Urmila), it would not be material, inasmuch as during investigation, unverified information may have been received by the investigating officer on which he may have acted. At present, there is nothing to doubt the presence of the applicant at the time of recovery, in view of the facts stated in the recovery memo as also in the statement of the Munesh Kumar. The application filed by the father of the deceased with respect to the videography of the postmortem is really inconsequential. The record of the investigation has to be examined on its strength and unless there is strong or cogent material, there is no ground to examine that issue any further, at this preliminary stage. The discrepancy with respect to the name of Geeta/Urmila Devi has been fully explained and, therefore, no interference is warranted, even on that count.
8. However, it cannot be appreciated how, despite specific application moved by the applicant on 25.05.2017, copy of which has been annexed with the present application, the learned court below proceeded to frame charges, without passing any order on that application. It being undisputed that the applicant was in jail on that day, it would have been wholly proper on part of the learned court below to allow for legal assistance to the applicant. The first implication of such assistance being denied, in view of the submission advanced by the learned counsel for the applicant, appears to be that the applicant could not file any application for discharge. His case and pleas may have been considered to some extent, at least to test whether a truly triable case exists against him. Such a course, if permitted, may have been wholly in the interest of justice and no adverse consequences may follow on the prosecution case, as a result of such procedure being adopted.
9. Subsequently, the applicant has been enlarged on bail. In view of such facts, the impugned order dated 25.05.2017 is set aside and the matter is remitted to the learned court below to proceed afresh. Further, in case, the applicant files a discharge application within a period of two weeks from today along with a certified copy of this order, the same may be heard and decided, strictly in accordance with law, as expeditiously as possible, preferably within a period of two months from the date of it's filing. The applicant further undertakes not to seek adjournment till the disposal of his discharge application.
10. With the aforesaid observations, the present application is disposed of.
Order Date :- 29.5.2019 Prakhar