Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1170

IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Rahimunnisha and Another – Appellants
Versus
State of U.P. and Another – Respondents
Application U/s 482/378/407 No. 2834 of 2021
Decided On : 02-12-2021

Advocates:
Advocate Appeared:
For the Appellants : Sadhu Sharan Chaubey, Abha Srivastava, Rajesh Kumar Singh, Salik Kr. Srivastava.
For the Respondent: Shiv Pal Singh.

Point of law : In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure.

Headnote:
Code of Criminal Procedure, 1973 - Section 227, 161, 482, 239, 173 (3), 73, 170, 158, 240 – Indian Penal Code, 1860 - Sections 419, 420, 467, 468, 470, 471, 409, 323, 504, 506 - PC Act, 1988 - Section 7 – Discharge – Framing of charge – Examination of witnesses by police – Punishment for cheating by personation – Forgery of valuable security, will – Punishment for criminal intimidation - Report of police officer on completion of investigation - Whether a prima-facie case has been made out against appellant - Whether or not a prima-facie case against accused has been made out - Whether a prima-facie case has been made out or not - Whether accused is required to be further tried or not.
Findings of the court :
Revisional Court referred to writ petition filed for quashing of FIR and order passed thereon and also petition filed under Section 482 of Cr.P.C. and observations made by Court regarding right of accused to file appropriate discharge application - Revisional Court considered fact that there was evidence on record of petitioner drawing Old Age Pension from Bank account concerned, and thereafter working as Safai Karmi - Court, observed that under Section 239 Cr.P.C. duty of trial court is that of considering discharge application, moved by accused and passing appropriate orders thereon, under Section 240 Cr.P.C - Trial court after hearing accused and coming to conclusion that prima-facie case had been made out for framing of charge had thereafter framed charges against such accused - Trial court had considered discharge application on its merit and also charge-sheet and had come to conclusion that prima-facie case had been made out against petitioner - settled law with regard to duty of trial court and scope of exercise of its power while considering a discharge application - Court considered arguments raised by counsel for petitioners that original documents relating to irregularity in distribution of Old Age Pension were with Economic Offences Wing, and therefore, charge-sheet could not have been filed on basis of photo copies of such documents and observed that it is only at time of considering of evidence on detailed trial that original documents would be necessary and they can then be called for by trial court concerned.
Result : Petition stands rejected

JUDGMENT :

SANGEETA CHANDRA, J.

1. This petition has been filed with the following main prayer:

“WHEREFORE, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to pass an order thereby quashing the impugned charge-sheet as well as cognizance/summoning order including order dated 11.02.2020, passed by learned 2nd Additional Civil Judge (JD) Judicial Magistrate Bahraich in Criminal Case No. 23/2015 arising out of Case Crime No. 666/2013 U/s 419/420/467/468/471. IPC P.S. Huzoorpur, District Bahraich, pending in the court of 2nd Additional Civil Judge (JD)/Judicial Magistrate Bahraich and also to quash the order dated 20.02.2021 passed by Learned Revisional Court/6th Additional Session Judge, Bahraich (contained as Annexure Nos. 1, 2, 10 and 12 of petition) in order to meet the ends of justice.”

2. It has been submitted by learned counsel for the petitioners Sri. Salil Kumar Srivastava Assisted by Sri. S.S. Chubey that the petitioners have been falsely implicated and the offence has not been made out in the evidence that has been collected by the Investigating Officer regarding the Sections under which charge-sheet has been submitted to the VIIth Additional Civil Judge (Junior Division) Judicial Magistrate, Behraich in Criminal Case No. 23 of 2015, when the case was initially inquired into by the Investigating Officer, he submitted a final report in the Court but before the Court could pass any order thereon, the Superintendent of Police directed further investigation in the matter without jurisdiction and entrusted the inquiry/investigation to another police officer who took the statement of only the Branch Manager of the Bank concerned and filed a charge-sheet in Court of which cognizance was taken by the learned trial court without application of mind.

3. The petitioners approached this Court initially by filing a petition challenging the FIR regarding to Case Crime No. 666 of 2013 under Sections 419, 420, 467, 468, 470, 471, 409, 323, 504, 506 I.P.C. Police Station Huzoorpur Distric Bahraich. This Court passed an order staying the arrest of the petitioners in Writ Petitioner No. 10783(MB) of 2013, till the report is submitted under Section 173 to the Court concerned.

4. Learned counsel for the petitioners submitted that the earlier Investigating Officer had recorded the statement of various witnesses including the complainant Rafique Ahmad as also Fakaroo, Mohd. Sabir, Rajjab and Others under Section 161 of the Cr.P.C. and on the basis of evidence collected, he had recorded a categorical finding that no case for which the FIR was lodged can be said to have been made out. The Investigating Officer had also recorded a finding that since all the documents pertaining to the alleged forgery in original are in possession of Economic Offence Wing where the investigation is in progress, as such filing of charge-sheet in the absence of documentary evidence is unwarranted. Resultantly, final report was filed by the earlier Investigating Officer.

5. Without taking permission of the Court under Section 173 (3) of the Cr.P.C. further investigation was directed by the Superintendent of Police and then an other Investigation Officer was entrusted with the job.

6. Learned counsel for the petitioner has pointed out paragraph 33 of the petition to say that superior officers of the police by invocation power under Section 173 (3) of the Cr.P.C. could not have directed further investigation and that power is reserved only with the Court and can be exercised pending the order of the Magistrate if an application for further investigation is made to the Magistrate, during consideration of such application, the superior officer of the police is empowered under Section 173 (3) Cr.P.C. to make further investigation, keeping in view the exigency of the situation.

7. Learned counsel for the petitioners submits that such orders could not have been passed by the superior officers of the police and it is being challenged by means of this