Court No. - 52
Case :- APPLICATION U/S 482 No. - 5988 of 2018 Applicant :- Robin Krishna Tiwari And 6 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Lokesh Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Lokesh Kumar Dwivedi, learned counsel for the applicants, Sri J.N. Dwivedi, learned counsel for the informant and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed for quashing proceeding in Criminal Case No.3867 of 2017 (State of U.P. Versus Robin Krishna Tiwari and six others) arising out of Case Crime No.82 of 2017 under Sections 147, 148, 323, 504, 506 and 308 I.P.C., P.S. Gopiganj, District Bhadohi, pending in the court of Chief Judicial Magistrate, Bhadohi.
Learned counsel for the applicants submits that the Investigating Officer after making interpolations in the charge sheet added Section 308 I.P.C. Though the charge sheet is dated 24.3.2017, the said manipulations were made on the basis of statement of the doctor recorded by the Investigating Officer in the supplementary case diary on 31.5.2017. The said facts clearly indicate that the entire case has been manipulated by opposite party no.2 in collusion with Investigating Officer and, prima facie, offence under Section 308 I.P.C. is not disclosed against them.
Per contra, learned A.G.A. as well as learned counsel for the opposite party no.2 have submitted that though the correction has been made in the charge-sheet by the Investigating Officer while it was submitted in the court on 26.9.2017 on which date learned Chief Judicial Magistrate has also taken cognizance of offence. However, it is stated that it is not disputed by learned counsel for the applicants that the incident which took place on 8.3.2017 i.e. the polling day and four persons from the prosecution side had sustained injuries on their vital parts. The head injury of injured, Shesh Dhar Tiwari was advised for X-ray and the X-ray examination was done on 9.3.2017 in which the fracture of occipital bone of skull was detected. Such a report was not obtained at a subsequent stage to make out an offence under Section 308 I.P.C. He has further submitted that charge sheet was prepared on 24.3.2017. However, it was submitted to the court on 26.9.2017 and the opinion of the radiologist was obtained by him on 31.5.2017 in a subsequent parcha of case diary. This may be on account of an overzealous act of Investigating Officer to make correction in the charge sheet subsequently and this fact by itself would not entail quashing of entire proceedings based on the impugned charge sheet.
In the present incident, four persons from the side of the prosecution sustained injuries on their vital parts and at this stage alleged interpolations by the Investigating Officer would not vitiate the entire proceedings.
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.
Without expressing any opinion on the rival submissions made by learned counsel for the parties, I am satisfied that prima facie there is evidence supported by injury reports of four injured to make out commission of cognizable offences. The prayer for quashing the proceedings is refused.
However, it is provided that if the applicants appear and surrender before the court below within 45 days from today and apply for bail,their prayer for bail may be considered and decided on same day in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 45 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicant do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 28.2.2018 MN/-