Reserved on 27.11.2021 Case :- APPLICATION U/S 482 No. - 17023 of 2021 Applicant :- Pramod Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shekhar Gangal Counsel for Opposite Party :- G.A.,Pankaj Srivastava
Hon'ble Rajeev Singh,J.
1. Heard Shri Anoop Trivedi, learned Senior counsel assisted by Shri Shekhar Gangal appearing for the applicant, Shri Munne Lal, learned A.G.A. for the State and Shri Ganesh Shankar Patel holding brief of Shri Pankaj Srivastava, learned counsel for the opposite party No.2, and perused the record.
2. The present application has been filed for quashing the charge sheet dated 23.06.2020 and supplementary charge sheet dated 20.11.2020 arising out of Case Crime No.218 of 2020, under Sections 323, 504, 506, 352, 354B I.P.C., Police Station Khair, District Aligarh, along with the entire proceeding of Case No.377 of 2020 (State of U.P. vs. Pramod and Others) as well as order dated 28.01.2021 passed by learned Judicial Magistrate, Khair, Aligarh.
3. Learned counsel for the applicant submitted that on the basis of hypothetical facts, the F.I.R. in question was lodged by the prosecutrix with the allegation that on the date of incident when she was doing work in agricultural field, applicant came suddenly and with the bad intention caught her and placed his hand on the private parts of the prosecutrix and skirmish was also done. At the same time, sons of the applicant namely Dheeraj, Neeraj and Ravi also reached there and assaulted her. At the same time, her husband also reached there and he tried to save her, then accused persons also attacked him. Thereafter, they ran away by giving life threat.
4. Learned counsel for the applicant further submitted that it is highly improbable that father tried to molest a lady in front of his sons. He further submitted that the applicant is the Village Pradhan and the government drainage was being constructed adjoining to the road, but the husband of the informant of the present case and other associates tried to create hindrance, then an application was given by the applicant to S.D.M., Khair, Aligarh on 18.05.2020. Thereafter, S.D.M., Khair, Aligarh directed to the S.H.O. concerned for inspecting the site and taking appropriate action. On the same date, the informant of the present case, her husband and other associates are trying to create hindrance in the government work on the construction of drainage, and when a query was made from them, then a threat was given for falsely implicating in rape case.
5. Learned counsel for the applicant further submitted that during the course of investigation, statement of independent witnesses namely Rajesh S/o Brijmohan Sharma, Jagdish Sharma S/o Lal S/o Har Prasad Sharma, Chokhelal S/o Ghamandi Lal, Ganga Sharan S/o Cheda Lal were recorded under Section 161 Cr.P.C. by the Investigating Officer and they categorically stated that on 16.05.2020 work of digging of drainage was going on under MGNREGA Scheme, and the prosecutrix and her husband raised objection and some altercation was also taken place in between Village Pradhan, his sons and the husband of the prosecutrix. They also stated that no such incident in relation to molestation of the victim was happened. He further submitted that after investigation, charge sheet under Sections 323, 504, 506 I.P.C. was prepared on 23.06.2020 and cognizance was taken by the court below on 20.08.2020. Thereafter, further investigation was conducted by the Investigating Officer without taking any permission from the court below and supplementary charge sheet dated 20.11.2020 was filed under additional Sections 352, 354B I.P.C. and second cognizance was taken by the court below on 28.01.2021.
6. Learned counsel for the applicant also relied on the decision of Hon'ble High Court of Madhya Pradesh in the case of Radheyshyam vs. State of M.P. and Another reported in 2018 0 Supreme (MP) 584 and also relied on the decision of Hon'ble Apex Court in the case of Dharam Pal and Others vs. State of Haryana and Another (2014) 3 SCC 306 and submitted that where the cognizance is taken under Section 190 of Cr.P.C. for the offences then second cognizance is not permissible, therefore, learned court below committed error at the time of passing order dated 28.01.2021 taking second cognizance on the offences on the supplementary charge sheet. He further submitted that further investigation is not permissible without taking prior permission of the court in which the charge sheet has already filed, and also relied on the decision of Hon'ble Supreme Court in the case of Vinay Tyagi vs. Irshad Ali @ Deepak Ali @ Deepak and Others (2013) 5 SCC 762.
7. Learned A.G.A. as well as learned counsel for the opposite party No.2 vehemently opposed the prayer of the applicant and submitted that reading of provision of Section 173(8) Cr.P.C. clearly states that no permission is required from the court for further investigation. They further relied on the decision of Hon'ble Supreme Court in the case of Rama Chaudhary vs. State of Bihar reported in AIR 2009 SC 2308 and submitted that mere reading of Section 173(2) of Cr.P.C. makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence. They further submitted that in the case of Vinay Tyagi vs. Irshad Ali (supra), it was also held that whereupon such investigation, the officer in charge of such police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribe form, in other words, the Investigating Agency is competent to file supplementary report to its primary report in terms of Section 173(8) Cr.P.C. and supplementary report has to be treated by the court in continuation of the primary report and the same provisions of law i.e. sub-section 2 to sub-section 6 of Section 173 Cr.P.C. shall apply when the court deals with such report. They further submitted that in the case of State of Andhra Pradesh vs. A.S. Peter reported in AIR 2008 SC 1052, this question was dealt with and it was held that carrying out a further investigation even after filing of the charge sheet is a statutory right of the police, and the law does not mandate the police for taking a prior permission from the Magistrate for further investigation. Therefore, there is no illegality in the further investigation and in filing the supplementary report, and the supplementary report is to be treated as a part of the earlier report. They further submitted that the provisions of Section 190 Cr.P.C. deals with cognizance of offence taken by the Magistrate. Therefore, there is no illegality in the order passed on the supplementary charge sheet which is in continuation with the order dated 20.08.2020.
8. Considering the arguments of learned counsel for the applicant as well as learned A.G.A. and learned counsel for the opposite party No.2, and going through the records, it is evident that in relation to first question of the applicant that the further investigation is not permissible without taking prior permission of the court is already decide by Hon'ble Supreme Court in the cases of State of Andhra Pradesh vs. A.S. Peter reported in AIR 2008 SC 1052 and Vinay Tyagi vs. Irshad Ali @ Deepak Ali @ Deepak and Others (2013) 5 SCC 762 in which it was held that section 173 (8) of Cr.P.C. does not mandate the police for taking prior permission from the Magistrate for further investigation and the supplementary report has to be treated by the court in continuation of the primary report filed earlier, and the same provisions of law i.e. sub-section 2 to sub-section 6 of Section 173 Cr.P.C. shall apply when the court deals with such report, therefore, subsequent cognizance in the added sections was not needed vide order dated 28.01.2021 and supplementary report is to be considered at the time of framing of charge.
9. Accordingly, the present application is partly allowed and the order dated 28.01.2021 passed by learned Judicial Magistrate, Khair, Aligarh for taking second cognizance is set aside, and the supplementary police report shall be considered by the court below at the time of framing of charge.
10. Applicant is directed to appear before the court below and co-operate in the trial strictly in accordance with law. However, it is also open to the applicant to move appropriate application for discharge at the appropriate stage, in case, any such application is moved, the same shall be decided in accordance with law.
Order Date :- 22.12.2021 S. Shivhare/-