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IN THE HIGH COURT OF ALLAHBAD
Rajesh Singh Chauhan, J.
Nitesh Kumar Verma – Applicant
Versus
State Of U.P. & Another – Opposite Parties
U/S 482/378/407 No. - 3589 of 2018
Decided On : 22-11-2021
Criminal Procedure Code, 1973 - Sections 155(2), 161, 164 and 482 – Indian Penal Code, 1860 - Sections 323, 504, 506, 354, 427, 376 and 511 – Criminal Intimidation – Rape - Seeking quash of Charge-sheet - Cognizance order - Whether the investigation carried out by the incompetent authority and charge-sheet filed by the same authority would make the investigation and charge-sheet as nullity in the eyes of law - Whether the order of cognizance of the Magistrate taking cognizance of the same charge-sheet would also be nullity.
Finding of the court : It is needless to say that while framing charges opportunity is provided to the accused person and after considering the objection of accused person the charges are famed. Even the accused person may file discharge application before the appropriate learned court below but on the basis of allegations, statements of family members, independent persons and statement u/s 161 and 164 Cr.P.C. of victim, court afraid why chargesheet was not filed earlier u/s 376 and 511 IPC. However, this observation may not create any hindrance to accused person opposing against the charge of section 376 and 511 IPC and learned court-below would be at liberty to frame charges against the accused person independently without being influenced from these findings - Court shows his displeasure regarding the conduct of the present petitioner by not coming fairly apprising the Court that petition of co-accused challenging the same charge-sheet has already been dismissed on merits. However, learned counsel for the present petitioner has submitted that the legal grounds to challenge impugned charge-sheet in both the petitions are different, therefore, such fact may not be treated as concealment.
Result : Petition is dismissed
JUDGMENT :
1. Heard Sri Sushil Kumar Singh, learned counsel for the applicant, Sri Anirudh Kumar Singh, learned AGA-I and Ms. Priyanka Singh, learned counsel for the opposite party no. 2.
2. By means of this petition the applicant has prayed for quashing of the Charge-sheet dated 10.3.2018 and the entire criminal proceedings in pursuance of charge-sheet pending in the court of IVth A.C.J.M., Court no. 22, Sultanpur arising out of Case Crime No. 163 of 2017 u/s 323, 504, 506, 354, 427, 376 IPC, P.S. Goshaiganj, District Sultanpur pending in Crl. Misc. Case No. 408 of 2018 (State vs. Pankaj & Others).
3. The precise question for consideration is whether the investigation carried out by the incompetent authority and charge-sheet filed by the same authority would make the investigation and charge-sheet as nullity in the eyes of law. Further as to whether the order of cognizance of the Magistrate taking cognizance of the same charge-sheet would also be nullity.
4. For addressing and replying the aforesaid question some brief facts of the case would be necessary to be considered.
5. In the present case a F.I.R. was registered on 6.11.2015 bearing N.C.R. No. 314 of 2015 u/s 323, 504, 427 IPC against four persons namely, Pankaj Verma s/o Ram Kumar Verma, Pradumma Verma s/o Keshavram Verma, Nitesh Kumar Verma s/o Keshavram Verma and Keshavram Verma s/o Sitaram Verma, Police Station Gosainganj, District Sultanpur. However, the bare narration of the F.I.R. revealed that the family members of the complainant namely, Smt. Rampatta Devi w/o Siyaram Verma had sustained injuries on the body and head.
6. Feeling aggrieved from the aforesaid inaction on the part of the police to register the case in N.C.R. instead of regular crime case the complainant of the F.I.R. namely, Smt. Rampatta Devi filed an application u/s 155(2) Cr.P.C. before the court of Magistrate on 8.1.2016. Learned Magistrate after perusing the allegation of the F.I.R. directed, vide order dated 25.1.2016, the S.H.O. concerned to register such case and investigate, therefore, the said case was registered under Crime No. 163 of 2017.
7. After completion of investigation the charge-sheet was filed on 10.9.2017 u/s 354, 323, 504, 506 and 427 I.P.C.
8. As per the material available on record the daughter of the complainant has recorded her statement under section 161 Cr.P.C. on 8.8.2017 and u/s 164 Cr.P.C. on 31.8.2017 making specific allegations against Pankaj Verma and Nitesh Kumar Verma (petitioner herein) regarding outraging of her modesty and attempt to rape. Therefore, it appears that the Circle Officer of the area while indicating his dissatisfaction regarding investigation and charge-sheet wherein the section relating to the attempt of rape was missing directed the S.H.O., Gosainganj, District Sultanpur to depute any other officer to conduct further investigation, returning back the charge-sheet with the complete case diary. Thereafter the S.H.O. concerned vide order dated 19.2.2018 has deputed one Sri Rana Pratap Singh, S.I., P.S. Gosainganj, Sultanpur to conduct further investigation and submit his report.
9. The aforesaid officer has further conducted the investigation and recorded the statement of complainant as well as other 12 witnesses including some independent witnesses who were not related with the family of the complainant. However, the earlier charge-sheet which was filed on 10.9.2017 the statement of only seven witnesses were recorded. On the basis of statement of aforesaid 12 persons including the independent witnesses, the complainant and of the victim and after perusing the statement of the victim recorded u/s 161 and 164 Cr.P.C. submitted supplementary charge-sheet on 10.3.2018 u/s 376 and 511 I.P.C. against Pankaj Kumar Verma s/o Ram Kumar Verma and Nitesh Kumar Verma s/o Keshav Ram Verma bearing no. 1A/2017.
10. Learned counsel for the petitioner has assailed the charge-sheet dated 10.3.2018 on the ground that the investigation conducted by the incompetent officer
Point of Law : Cognizance and trial cannot be set aside unless the illegality in the investigation can be shown to have brought about mis-carriage of justice.
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