Reserved on 26.11.2021 Case :- APPLICATION U/S 482 No. - 13600 of 2020 Applicant :- Suobhash Jk Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohd. Rashid Siddiqui,Abhinav Gaur,Ankush Tandon Counsel for Opposite Party :- G.A.,Ravindra Sharma and Case :- APPLICATION U/S 482 No. - 16099 of 2020 Applicant :- Smt. Kamna And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohd. Rashid Siddiqui,Abhinav Gaur,Ankush Tandon Counsel for Opposite Party :- G.A.,Ashok Kumar,Ravindra Sharma
Hon'ble Rajeev Singh,J.
1. Heard learned counsel for the parties and perused the record.
2. Both the applications have been filed with the prayer to set aside the cognizance order dated 17.12.2019 passed by Chief Judicial Magistrate, Agra in Crl. Misc. Case No.1090 of 2018 arising out of Final Report No.326 of 2018 in Case Crime No.523 of 2018 relating to Police Station Hariparvat, District Agra, thereforoe, both the applications are being decided by way of common judgment with the consent of the learned counsel for the parties.
3. Learned counsel for the applicant submitted that the marriage of the sister of opposite party No.2 namely Ms. Kaushiki was solemnized with Sachin in the month of April, 2013. He further submitted that Suobhash JK Kumar (applicant of Crl. Misc. Case No. - 13600 of 2020) is the elder brother of Sachin; Smt. Kamna W/o Suobhash JK Kumar who is the sister- in-law of Sachin (Bhabhi), Sunil Kumar @ Tinku S/o Madan Lal Kumar who is the cousin brother of Sachin and Smt. Sakshi W/o Sunil Kumar @ Tinku who is the sister-in-law of Sachin are the applicant Nos.1, 3 & 2 respectively in Crl. Misc. Case No.16099 of 2020. He further submitted that out of wedlock of Ms. Kaushiki and Sachin, son Variman was born in the year of 2014. In the year 2015, Sachin went to United States of America and started working as Software Engineer in multi-national company and his wife Kaushiki (sister of the opposite party No.2) also went with him. He further submitted that some matrimonial dispute arose in between them and Sachin filed for divorce, on mutual consensus, before the competent court of California, U.S.A. in the March, 2017 and the agreement was duly accepted by Ms. Kaushiki (sister of opposite party No.2), and the divorce petition was allowed by the competent court vide decree dated 21.12.2018.
4. Learned counsel for the applicant has further submitted that on the basis of concocted facts, the F.I.R. No.523 of 2018, under Sections 324, 326, 504, 506, 427 I.P.C., P.S. Hariparvat, District Agra was lodged by the opposite party No.2 on 30.07.2018 with the allegation that on 29.07.2018 at about 21:30 hours, when his father namely Raj Kumar was coming with his Activa, then near Parmar Market, M.J. Road, his vehicle was overtaken by the accused persons with their vehicle. Thereafter, Subhash Kumar, Tinku, Kamna & Sakshi came down from the vehicle and Subhash, who was armed with iron rod, had given a blow on the head of Raj Kumar, as a result, his father fell down on the ground, thereafter, rest of the accused persons started beating him with danda, kicks and punches and also damaged the Activa vehicle. Thereafter, Subhash also taken out Banka (sharp edged weapon) from his vehicle and has given a blow on the neck of Raj Kumar with the intention to kill him, as a result, Raj Kumar received serious injuries on the neck and his ear was also cut. On the alarm of injured Raj Kumar (father of informant), mob was collected and the accused persons fled by abusing as well as giving life threat to Raj Kumar. Someone from the mob made a call to 100 number from the mobile of Raj Kumar, but no one responded, then call was made to police control room and informant was also informed. Thereafter, police reached on the spot and injured was brought to the police station, and informant also reached to the police station. Thereafter, injured Raj Kumar was brought to the District Hospital for medical treatment. He further submitted that in the F.I.R., it is also alleged that the accused persons was making pressure on the sister of informant/opposite party No.2 for allowing them to keep her son namely Variman at Delhi, but the father of informant as well as sister of informant refused, therefore, they were enmical with the father of the informant.
5. Learned counsel for the applicant has further submitted that during the course of investigation, the statment of informant was record and he reiterated the version as given in the F.I.R. He also submitted that informant is not the eye witness of the incident. He further submitted that the statement of injured was also recorded under Section 161 Cr.P.C. in which he stated that Subhash came down from the vehicle and attacked with the iron rod, as a result, he fell down, and general allegations have been levelled against rest of the accused persons that they assaulted him with the kicks and punches and his vehicle was also broken. It is also alleged that Subhash brought Banka (sharp edged weapon) from his vehicle and attacked him on the neck with the intention to kill him. He further submitted that the statement of independent witnesses namely Rajeev Kumar and Raghuraj Parihar were also recorded during the course of investigation and they denied any such incident and stated that injured was found on the place of incident and he was telling that Subhash and other persons has caused injury to him, but they denied seeing any person or the person who caused the injury to the injured. He further submitted that during the course of investigation, Investigaiting Officer found that accused Subhash Kumar, who is allegedly the main accused in the crime in question, was in the Max Hospital, Shalimar Bagh, Delhi since 29.07.2018 to 30.07.2018 for his treatment as per the hospital records and in the CCTV footage, his presence was also found in the hospital. Thereafter, the Investigating Officer righly came to the conclusion that at the time of alleged incident, Subhash (main accused) was not present at the place of incident as he was under treatement in the Max Hospital for surgery, and as per the call details report, the location of rest of the accused persons was also not found on the place of incident, therefore, after considering the aforesaid facts, final report was submitted by the Investigating Officer. Thereafter, the protest petition was filed by the informant aginst the final report which was allowed by the court below and the statement of the officials of Max Hospital and the CCTV Footage of the Hospital along with the record as well as call details report of other accused persons and their respective locations were not considered by the court below.
6. Learned counsel for the applicant further submitted that the learned court below cannot ignore the evidence collected by the Investigating Officer during the course of investigation and the record of Max Hospital as well as the CCTV Footage and the statement of Hospital Staff. Therefore, kind indulgence of this Court is necessary.
7. Learned A.G.A. as well as learned counsel for the complainant have vehemently opposed the prayer of the applicant and submitted that the Investigating Officer has not disbelieved the injuries of the injured Raj Kumar and they further submitted that statement of the injured person cannot be ignored by the Investigating Officer as he is the best witness to speak the truth that who caused the injury to him. They also submitted that all the facts relied by the accused persons can be examined by the trial court during the course of trial. and they also relied on the decision of Hon'ble Supreme Court in the case of Nupur Talwar vs. Central Bureau of Investigation, Delhi and Another (2012) 2 SCC 188 and submitted that despite the closure report filed by the Investigating Officer, the learned Magistrate is competent enough to take cognizance and proceed in the matter as a State case and in the present case, there is injured witness having greivous injuries, therefore, there is no illegality in the cognizance order passed by the court below. The relevant para Nos.16 & 17 of the aforesaid judgment are as under:-
“16. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not.
17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.”
8. Considering the arguments of learned counsel for the parties and going through the records, it is evident that F.I.R. in question was lodged by the son of the injured Raj Kumar, who is not an eye witness, but injured was sent to the District Hospital Agra with Home Guard 421 Rajbeer Singh with the Chitthi Majrubi and he was medically examined on 29.07.2018 at 10:10 p.m. and injuries are found on his body i.e. Injury No.1 is the incise wound and injuries are grievous in nature, the statement of injured was also recorded under Section 161 Cr.P.C. in which he assigned the role to the accused persons for causing injuries to him. It is also evident that after investigation, final report was submitted by the Investigating Officer by exonerating the accused persons on the ground that accused Subhash was in the Max Hospital and the location of other accused persons were also not found at the place of incident as per the CDR; but the learned court below has rightly rejected the final report and allowed the protest petition by taking cognizance against the accused persons as a State Case in pursuance of the judgment of Hon'ble Supreme Court in the case of Nupur Talwar vs. Central Bureau of Investigation, Delhi and Another (supra) as there is statement of injured witness and there is no illegality in the cognizance order passed by the court below.
9. Accordingly, both the applications are hereby dismissed.
Order Date :- 22.12.2021 S. Shivhare/-