Court No. - 34
Case :- APPLICATION U/S 482 No. - 38331 of 2018
Applicant :- Shiv Kumar Dwivedi And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anil Kumar Bajpai
Counsel for Opposite Party :- G.A.,Ajay Sengar,Deepak Dubey
Hon'ble Om Prakash-VII,J.
This application under Section 482 CrPC has been filed with the prayer to quash the impugned order dated 03.10.2018 passed by Additional Sessions Judge/Fast Track Court No. 1, Auraiya whereby application dated 23.08.2018 (paper no.73-kha) moved by applicants in Session Trial No. 111-A of 2016 (State Vs. Shashendra Kumar Dwivedi and others) arising out of Case Crime No. 76 of 2016, under Sections 148, 149, 302 I.P.C., Police Station Auraiya, District Auraiya has been rejected. Further prayer has been made to stay further proceedings of the aforesaid Session Trial.
Heard learned counsel for applicants, learned counsel for complainant / informant as well as the learned A.G.A.
It is submitted by learned counsel for applicants that impugned order dated 03.10.2018 passed by court below is illegal and without application of judicial mind. In fact no charge sheet was filed against applicants rather final report was submitted against them. During pendency of trial against co-accused, who were facing trial, an application under Section 319 CrPC was moved and applicants were summoned vide order passed in the said application. Although applicants challenged said order before High Court and thereafter in Apex Court yet same was approved/confirmed up to Hon'ble Supreme Court. Trial is going on and applicants are participating in the proceedings and charge has been framed. Recording of statement of PW-1 is going on. It is further submitted that during trial an application No. 73-kha at the end of applicants was moved before Court below to summon the documents collected during investigation as applicants have every right under Section 91 CrPC to summon the same. At this juncture, learned counsel for applicants referred to the contents of said application and provisions of Section 91 CrPC and submitted that trial court illegally interpreting the observations recorded by Apex Court in the order passed in Special Leave Petition (Criminal) No. 8891-8892 of 2017 rejected the prayer. It is next contended that if application is not allowed, documents sought to be summoned through aforesaid application no. 73-kha are not brought on record, applicants would suffer irreparable loss and they will not be able to defend their case effectively. It is also submitted that documents sought to be summoned through the aforesaid application No. 73-kha were related to the investigation period i.e. before submission of final report. In support of his submissions learned counsel for applicants placed reliance on the following case laws:
(I) State of Orissa Vs. Debendra Nath Padhi, 2005 (51) ACC 209.
(II) Nitya Dharmananda @ K. Lenin and another Vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda and another, 2018 (102) ACC 635.
On the other hand, learned counsel for informant/complainant as well as the learned AGA submitted that there is no infirmity or illegality in the impugned order. One of accused facing trial in the same crime on the basis of charge sheet submitted against him had also moved an application before the court concerned which was rejected and thereafter matter reached upto Apex Court but prayer made by accused was rejected by the Hon'ble Supreme Court vide order dated 03.04.2018. Same prayer has been made by the present applicants. Documents sought to be summoned through application No. 73-kha are related to after submission of final report and no prior permission, as required under Section 173(8) CrPC for further investigation, was obtained from the court concerned. Thus, observations recorded by trial court in the impugned order are in accordance with law and need no interference. It is further submitted that on the basis of order passed by Apex Court and also by this Court in bail application moved by Shashendra Kumar Dwivedi (applicant no. 2) trial is going-on day-to-day basis. Present application has been moved only to frustrate the purpose of the orders passed by this Court and also by the Apex Court.
I have considered rival submissions made by learned counsel for parties and have gone through entire record including impugned order as well as the case laws carefully.
In this matter, it is admitted case of parties that trial of accused, who were charge sheeted in the matter, has been separated from the trial of present applicants. It is also evident from the record that applicants were summoned in the matter on the basis of order passed under Section 319 CrPC, which was challenged but confirmed by Apex Court vide order dated 03.04.2018. Final report in the matter was submitted against accused applicants on 25.08.2016. Charge has been framed against the applicants and statement of PW-1 is being recorded. Application No. 73-kha has been moved at the stage when statement of PW-1 is being recorded. Certified copy of application No. 73-kha is filed along with this application which is annexure 8 to the application, wherein it has been mentioned as under:
"अभभिययोजन भविभिभाग मम धभारभा 173(2 to 8) अभग्रिम भविविवेचनभा ररपयोरर जभात हहआ हहै भकि D.G.C. (Cr.) किवे यहभाहाँ भकिससी खभास मकिसद सवे व्यरर मम हसी रयोकि रखसी गयसी हहै l पभारर्थी किकी ओर सवे D.M. औरय भा वि S.P. औरय भा किवे यहभाहाँ पभाररनभापत्र भदयवे गयवे हहै और अननुकिक ल आदवेश हयो चकिवे हहै l अततः यह आविश्यकि हहै भकि उक्त ररपयोरर कियो न्यभायभहत मम वि किभानकन किवे अननुसभार भिसी उक्त ररपयोरर तलब भकियभा जभाय, महभान किक पभा हयोगसी l अन्यरभा पभारर्थीगण किकी अपकणरनसीय क्षभत हयोगसी l "
If facts mentioned in the aforesaid application are taken into consideration, it is evident that it was moved on 23.08.2018 mentioning therein that documents collected by the Investigating Officer under Section 173(2 to 8) Cr.P.C. during further investigation have not been filed before Court. In the special leave petition moved by present applicants before the Apex Court against the order passed by the court below and this court on the application under Section 319 CrPC and also filed by co-accused, the Apex Court vide order dated 03.04.2018 passed following order, relevant portion of which is as under;
"We are, in principle, not inclined to interfere with the impugned order by the High Court of Judicature at Allahabad.
However, learned Senior counsel appearing for the petitioner brought to the notice of this Court, several documents including Report dated 23.09.2016, submitted by the Additional Superintendent of Police. Placing reliance of the aforesaid Report, he contends that the report was prepared on an application made on behalf of the complainant himself. On perusing the material available on record, it can be observed that no prior permission was sought or taken from the Court to conduct such further investigation. Therefore, we cannot direct the prosecution to place the same before the Court."
The trial court in the impugned judgment and order has observed that documents sought to be summoned through application No. 73-kha were related to further investigation made under Section 173(8) Cr.P.C. and same are not essential for disposal of the matter. The trial court has further observed that application No. 73-kha was moved by the applicants only to delay the trial. The Court below has also analysed in the impugned order entire submissions raised at the bar.
If the observations recorded by trial court in the impugned order are minutely analysed, no substance is found in the prayer made in this application.
Although application No. 73-kha moved by applicants is ambiguous in nature, specific details of the documents sought to be summoned has not been disclosed in the same, yet I have analysed the submissions made by learned counsel for parties in light of the law laid down by the Apex Court in the case laws cited by the applicants. In this matter, trial is at the stage of prosecution evidence. Statement of PW-1 is going on. Provisions of Section 91 CrPC will come into play in regard to accused applicants at the stage of defence as has been laid down by the Apex Court in the aforesaid decisions. If for the sake of arguments submissions raised by learned counsel for applicants are taken into consideration then also documents sought to be summoned through the aforesaid application no. 73-kha cannot be placed before informant PW-1, whose statement is underway. It is also settled position of law that if documents sought to be summoned are related to further investigation made by police without obtaining prior permission of the court, the same cannot be permitted to be produced during trial on the request of parties as has been held by Apex Court vide order dated 03.04.2018 in the aforesaid special leave petition. Application moved by applicants before the court below for the reasons discussed here-in-above was not maintainable at the stage when the same was moved. If the documents sought to be summoned through application No. 73-kha are admissible in evidence, the same may only be summoned on behalf of applicants (accused side) at the stage of defence.
In view of above discussions, there is no substance in the submissions made by learned counsel for applicants. Impugned order does not suffer from infirmity or illegality. The application lacks merits and is liable to be dismissed.
The application is accordingly dismissed.
Order Date :- 27.10.2018/Sanjeet