Amar Nath Misra and Others vs State of U.P.

Palok Basu, J.—On 17th May 1984, at 10.30 P.M. one Smt. Saroj, allegedly died. The matter was reported by Amar Nath Misra to the Police Station, next day morning. Another report about alleged murder of Smt. Saroj Devi was lodged on 21-5-1984 by Sitarara Shukla. Enough arguments have been made by Sri. V.C. Misra, in support of this application u/s 482 Code of Criminal Procedure, primarily containing the prayer that the proceedings against the applicants may be quashed. But the fact remains, that the matter has been taken cognizance of by the Magistrate on 9-8-1986. After complying with the provisions of law, the Magistrate committed the accused and the case to the court of Sessions on 17-9-1987. Charges have been framed u/s 302/34/201 IPC and 4 of the Dowery Prohibition Act, against all the applicants namely Amar Nath Misra, Smt. Yashwanti Devi, Surendra Pati and Bhupendra Pati.

At the outset it may be stated that Mr. V.C. Misra fairly conceded that in so far as Criminal Misc. Application No 9679/85 is concerned, it has become infructuous. This other petition u/s 482 Code of Criminal Procedure was tiled when the police had not submitted charge-sheet and the matter was pending investigation. The petition was admitted on 5-9-1985 and it was directed that while investigation was to go on, the applicants and co-accused Rajendra Pati Misra, may not be arrested during the pendency of the said petition. With similar prayer writ petition No. 1123/1985 was also filed That petition was got dismissed as not pressed on 4-2-1987. Sri. V.C. Misra argues that the charge-sheet having come, challenging which the present 482 petition has been filed, the earlier Criminal Misc. Application No. .9679 of 1985 may be dismissed as infructuous. I direct accordingly.

Coming back to the merits of the present application, three main arguments have been advanced by Sri Misra:

Firstly, the Investigating Officer who has ultimately filed charge-sheet did not have power of investigation flowing to him through the letter of the Government dated 17-7-1984, a copy of which has been filed as Annexure SA-1 to the supplementary affidavit filed on 22-9-1988. Secondly, two witnesses allegedly giving out statements u/s 161 Code of Criminal Procedure about Dying Declaration have given wrong dates and the remaining 3 being related and inimical witnesses can not be relied upon as their statements were recorded by the new Investigating Officer, after about one year of the alleged incident. Thirdly, that no offence is made out since final report by earlier Investigating Officer was submitted and no charge-sheet has been filed against Rajendra Pati Misra, hence proceedings against the applicants be quashed.

In reply Sri. P.S. Adhikari, appearing on behalf of the State and Sri. S.K. Chaubey, appearing on behalf of the informant have laid emphasis on one fact only. They say that it cannot be argued that on the basis of the material available with the Trial Judge no charge could be framed. Being satisfied on the basis of the material charges have been framed. At the end of trial, if, it is found by the trial judge that the witnesses are not reliable, he may acquit the accused. It is further argued that when the later Investigating Officer collected the rest of the evidence and then proceeded to file a charge sheet, the investigation cannot be challenged u/s 482 Code of Criminal Procedure.

I have given my anxious considerations to the entire pros and cons of the matter. As regards the first two points, since the magistrate has taken cognizance of the matter, and has committed the case to the court of Sessions and the trial judge has framed charges against the accused, I do not think it fit case for exercise of powers u/s 482 Code of Criminal Procedure quashing of the entire proceedings The third argument advanced by Sri. Misra was that the co-accused Rajendra Pati Misra, has already been given benefit by Investigating agency inasmuch as he has not been charge-sheeted hence on the ground of parity the applicants should also get the same benefit. I am afraid in matters of trial and that too at such an interlocutory stage; this kind of parity is not available. If the Investigating Officer tentatively formed an opinion on material collected by him, the said opinion will be subject to what the court finds as real and truthful.

Another dispassionate argument has been advanced by Sri. Misra. He says that the applicant No. 1 is aged about 80 years, applicant No. 2 Smt. Yashwanti Devi.is a lady of about 76 years of age, applicant No. 3 Bhupendra Pati Misra is alleged to be a practising lawyer at district courts at Allahabad and the applicant No. 4 Surendra Pati Misra is said to be now a student of 2nd year law classes in Allahabad University. The last one is the husband of the deceased. Bhupendra Pati Misra is the elder brother of Surendra Pati, Misra. It is argued that leniency can certainly be shown as against Amar Nath Misra and Smt. Yashwanti Devi, and also applicant No. 3 and 4; in so far their question of surrender and bail is concerned.

7 On behalf of the informant it has been brought to the notice of the court that the ages given by the learned Counsel for the applicants as regards the applicant No. 1 and 2 are not correct.

After considering the entire matter and weighing the circumstances, particularly the fact that all the applicants have got an order from this Court whereby their arrest was stayed and also that they are appearing in the court for trial, I deem it fit and proper to direct that if and when the applicants appear and make an application for bail, before the trial Judge, the trial Judge will consider the said bail application himself on the day it is moved and decide it according to law without minimising the importance of the fact as noted in the foregoing paragraphs of this judgment.

This application is accordingly dismissed with the aforesaid observations. The interim order dated 6-9-1985 is vacated.

A copy of this order shall be delivered to the learned Counsel for the parties on payment of usual charges within three days.