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JAGAT BIHARI LAL SAXENA versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Jagat Bihari Lal Saxena v. State Of U.P. And Another - APPLICATION U/s 482 No. 14786 of 2005 [2005] RD-AH 4110 (6 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 54

Criminal Misc. Application No. 14786 of 2005

Jagat Bihari Lal Saxena Vs. State of U.P. and another.

_____  

Hon. Mrs. Poonam Srivastava, J.

Heard Shri S.M.N. Abbas Abedi, counsel for the applicant and learned A.G.A. for the State.

The order dated 26.9.2005 passed by the Additional Sessions Judge, Court No. 11, Meerut in Sessions Trial No. 1016 of 2004- State Vs. Jagat Bihari Lal Saxena, arising out of case crime no.156 of 2004 under Sections 364, 302 , 201 I.P.C., Police Station Kotwali, district Meerut, is impugned in this application.

A First Information Report was registered against the applicant under Section 364 I.P.C. on 14.9.2004 by the opposite party no. 2 a copy of which is annexed as annexure no.1 to the affidavit filed in support of this application.

On 20.10.2004, a decomposed body in yellow Saree was recovered which was identified by mother of victim-Aruna Peter (deceased). Subsequently,  the case under Section 364 I.P.C. was converted  under Section 302 I.P.C. A charge sheet was submitted by the Investigating Officer on 25.11.2004 vide charge sheet no. 90 of 2004, under Sections 364, 302, 201 I.P.C. Cognizance was taken by the Chief Judicial Magistrate, and the case was committed to the Court of Session. The mother of the deceased moved an application before the Senior Superintendent of Police, Meerut, for getting the matter further investigated as she was not satisfied with the role of the police during the course of investigation, on account of reason the accused is an advocate and the police did not investigate the matter impartially. At the time of framing of the charges in the sessions trial, an application was moved at the behest of the complainant on 16.4.2005, in respect of certain additional papers of the case diary which were also part of the investigation. An objection was filed on behalf of the applicant, that the papers filed  was a part of the case diary which  was submitted subsequently, after the court had taken cognizance and committed to the Court of Session.   The objections  on behalf of the applicant were rejected and the papers were taken on record vide order dated 26.9.2005.

The argument on behalf the applicant is that the investigating officer has no right of  re-investigation or further investigation without permission of the court after submission of the charge sheet. Emphasis has also been laid that a private counsel has no right to do pairvi in a State case and subsequent Parchas have been filed with a view to plug the loopholes of the investigation.

I have gone through the impugned order and the decisions cited by the counsel for the applicant. In the case of K. Chandra Sekhar  Vs. The State of Kerala and others, 1998(37) ACC 136, during the continuation of investigation, a report was sent to the Director General of Police, Kerala , apprising him  that the special team  was not adequately equipped to conduct effective investigation and, therefore, a request was made for appropriate orders for transferring the investigation to the Central Bureau of Investigation. The Government issued a notification in pursuance to the request made by the Director General of Police, Kerala, whereby the investigation was transferred to another agency. Subsequently, the notification was quashed which was challenged in the Apex Court. The Supreme Court quashed the subsequent notification whereby the investigation was entrusted to the C.B.I. The Court held that the impugned notification does not comport with the known pattern of a responsible Government bound by rule of law. The facts of the present case is some what different and the principle laid down by the Apex Court in the case of    K. Chandra Sekhar  Vs. The State of Kerala and others, is of no help to the applicant.

Another decision relied by the counsel for the applicant is Manju Yadav and others Vs. State of U.P. and others [2005(52) ACC 633] In this case the Court quashed the charge sheet on the basis of subsequent investigation on account of reason that on two earlier occasions, the police submitted final report which was accepted by the Magistrate and the order of acceptance of final report was challenged in revision which was also dismissed. Subsequently, the police started further investigation and submitted a charge sheet without obtaining permission from the Magistrate as required under Section 173(3) Cr.P.C. In the circumstances, this decision also does not help  the applicant. In the present case, the charge sheet was submitted. The case was committed to the Court of Session and the Senior Superintendent of Police, on receipt of an application from the wife of the complainant, directed the police that there were certain additional points, which were required to be investigated. The matter was investigated on those points and Parcha was submitted as a part of case diary and same has been accepted by the court. The Apex Court in the case of Ram Lal Narang Vs. State ( Delhi Admn.) AIR 1979 SC 1791 has ruled that notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted  and the police can exercise such right as often as necessary when fresh information comes to light. It was clearly held in the said case, that there is no provision in the Code of Criminal Procedure which expressly or by necessary implication bar the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. While laying down the aforesaid principle in the case of   Ram Lal Narang (supra), the Apex Court relied upon another decision in H.N. Rishbud Vs. The State of Delhi (1955)SCR 1150). In the said case, it was laid down that the court cannot completely ignore the invalidity of the investigation during trial. The court, at a sufficiently early stage, will have to take necessary steps to get illegality curbed and the defect, if any, rectified by ordering for investigation as the circumstances of a particular case may call for. Similar view has been expressed by the Apex Court in the case of Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others, 2004 Cri. L.J. 2018.  Section 173 (8) of the Code, expressly authorizes for further investigation even after the court takes cognizance of the offence. Paragraphs 11 and 12 of the said judgment are quoted below:

"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.

12. Sub-Section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature off investigation already conducted.

  In the circumstances, it is evident that the Senior Superintendent of Police directed the investigating officer to investigate certain additional matter which was relevant for a just decision and was directly related to the merit of the case. In view of the decision of the Apex Court, since the matter is still pending before the learned Sessions Judge, there is no illegality in  accepting the additional Parchas which were only a supplementary case diary. Acceptance of those papers cannot render the impugned order illegal.

The second argument on behalf of the applicant that the application could not be entertained through a private counsel, is also without any substance. Annexure 4 is the application which was moved on 16.4.2005. A perusal of Xerox copy annexed with the paper book clearly shows that A.D.G.C. has also signed the application. Signature is very conspicuous at the bottom of the application. Therefore, it cannot be said that there is any illegality whatsoever.

However, Section 301(2) of the Code provides:

That if in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in-charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor.

In the instant case, assuming that the application was moved by the private pleader, it is clear that signature of the A.D.G.C. is present on the application, therefore, the permission must have been sought. In the circumstances, the second argument on behalf of the applicant lacks substance. There is no illegality in the impugned order. The learned Sessions Judge is competent to take into consideration the additional Parchas, which form part of the case diary at the time of framing of the charge.

In the present case, the mother of the deceased apprised the Senior Superintendent of Police regarding serious lapses in investigation and her apprehensions that she might not get justice, the Senior Police official thought it proper to get the matter further investigated on certain specific points. I see no illegality if the matter was investigated and brought on record. I am of a considered opinion that in a case where there are no direct evidence and the body of the deceased was recovered subsequently in a decomposed condition, the investigating agency should be all the more cautious. It is always open to the defence to question the admissibility of the evidence during the trial. Thus, the argument that acceptance of subsequent parchas is an abuse of the process of the court is not well founded; on the contrary in case it is not taken on record, it will defeat the ends of justice.

Taking into consideration all the facts and circumstances, this application lacks merit and is dismissed.

DT:  6 .10.2005

Iss/  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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