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Krishna Kumar @ Siyaram vs State Of U.P. And Another

High Court Of Judicature at Allahabad|03 April, 2010


Heard learned counsel for the applicant, leaned A.G.A. for the State and perused the material placed on record.
The applicant, through this application under section 482 Cr.P.C., has invoked the inherent powers of this Court with the prayers that order dated 29.1.2010 rejecting his application for discharge moved under section 227 Cr.P.C. and the order dated 8.2.2010, issuing non-bailable warrant against him passed in S.T. No. 460/2009 State vs. Shiv Kumar @ Chhotakannu under sections 147, 148, 149, 452, 302, 307 I.P.C., P.S. Isa Nagar, District Kheri, pending in the court of Additional Sessions Judge/ F.T.C..I, Lucknow as well as the supplementary charge sheet filed against him, be quashed.
Learned A.G.A. has raised preliminary objections against the maintainability of this application on the ground that though writ, revision and applications under section 482 Cr.P.C. relating to the said Sessions Trial have been filed wherein the supplementary charge sheet filed against him and others has been challenged but in para 1 of this application it has wrongly been stated to be the first application. Further, the applicant has deliberately concealed about the order passed by this Court on 6.2.2002 in Criminal Revision No. 216 of 1995, whereby, on the request of the accused revisionist this Court had allowed him two months time to surrender before the Magistrate but without disclosing about the said order dated 6.2.2002 he obtained a different order on 8.2.2002 from a different Bench of this Court in Criminal Misc. Case No. 1337/2001 (Krishna Kumar @ Siya Ram vs. State of U.P.).
Learned counsel for the applicant, however, disputes the above contentions and submits that nothing has been concealed from the Court and in the copy of the impugned order dated 29.1.2010, Annexure No.11 to the application, the trial court has reproduced the order of this court dated 6.2.2002 passed in the said revision and it is the first application in respect -2- of the present cause of action.
Though the applicant, in para 11 of the application, has stated about the filing of the Criminal Revision No. 216 of 1995 but he has not disclosed about the order dated 6.2.2002 passed in that revision. The applicant has, therefore, not come before this Court with clean hands and appears to have deliberately concealed about that order in his petition. It is also not the first petition challenging the supplementary charge sheet as in earlier application filed under section 482 Cr.P.C. (Crl. Misc. Case No. 1337/2010) the supplementary charge sheet was challenged. The application is liable to be dismissed on this count alone.
So far as the merit of the case is concerned, it has been submitted that out of 14 persons named in the report of the incident, charge sheet was filed only against 10 persons with the conclusion that naming of the remaining four persons, including the applicant, had been found false. Although cognizance was taken on the charge sheet, but the police, without obtaining any permission for further investigation under section 173 (8) Cr.P.C., started re- investigation and got recorded the statement of eight witnesses under section 164 Cr.P.C., and a supplementary charge sheet has been filed against the applicant and three others. The contention of the applicant's counsel is that the investigation against the applicant and three others was completed with the specific remark of the Investigating Officer in the earlier charge sheet that no further action is left in the said case, (MUKDAMA UPROKT MEIN AAGE KOEE KARYAWAHEE SHESH NAHIN HAI) further act on the part of the police to collect evidence against the applicant is not a further investigation as is permitted under sub-section (8) of section 173 Cr.P.C. It is also contended that recording of the statements of witnesses under section 164 Cr.P.C. is reinvestigation so far as the applicant and three other accused persons are concerned, which is not permissible under the law. In support of this contention reliance has been placed upon an observation of the Supreme Court in the case of K. Chandra Shekhar vs. State of Kerala (1988) 5 SCC 223, cited in the subsequent case of State of A.P. vs. A.S. Peter (2008) 2 SCC 383 that "further investigation" is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab-initio wiping -3- out the earlier investigation altogether. The Court further observed that sub- section (8) clearly envisage that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports and not a fresh report or reports regarding the 'further' evidence obtained during such investigation.
The concluding note in the earlier charge sheet that no further action is left in respect of the case can not operate as a legal impediment for the police to investigate the matter further in exercise of its powers under section 173(8) Cr.P.C. The act of recording of the statements of the witnesses under section 164 Cr.P.C. is not the reinvestigation or fresh investigation of the case. The learned trial Court in its detailed order dated 29.1.2010, after considering all the pleas taken by the accused-applicant and taking into account the relevant circumstances of the case and the prima facie evidence against the applicant, has rightly rejected the discharge application moved under section 227 Cr.P.C., which does not warrant any interference by this Court in exercise of its inherent power.
In view of above, it is not a fit case wherein this Court should invoke its inherent powers. The application is liable to be dismissed. The Supreme Court in the case of Dalip Singh vs. State of U.P. and others (2010)2 SCC 114 has observed that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Since the applicant has not come before the Court with clean hands and has concealed about the order dated 6.2.2002 as indicated earlier, therefore, the application is dismissed with a cost of Rs. 5,000/- which shall be deposited in the account of the Mediation and Conciliation Centre of the High Court within one month, failing which, the amount of cost shall be recovered as arrears of land revenue.
Order Date :- 3.4.2010 Muk
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Krishna Kumar @ Siyaram vs State Of U.P. And Another


High Court Of Judicature at Allahabad

03 April, 2010