Dharmatma Prasad Mishra vs State of U.P. and Another

Amar Saran, J.—Heard applicant who appeared in person, Mohd. Shoeb Khan for opposite patty No. 2 and learned A.G.A.

The applicant has been charge-sheeted in Case No. 5880 of 2004, under Sections 352, 504, 506 and 427, I.P.C., P.S. Khalilabad passed by C.J.M., Basti, and cognizance was taken and the case is pending.

Firstly the applicant submitted that in this case the order dated 27.2.2003, passed by the C.J.M., Basti (which the applicant has not even cared to annex) was set aside by the Sessions Judge, Basti, in Crl. Revision No. 473 of 2004 by an order dated 16.7.2005. The Sessions Judge ordered that the case be remanded back to the C.J.M., Basti, who was directed to decide the applicant u/s 155(2) as per the observations made by the learned Sessions Judge. In the order all the parties were directed to appear before the C.J.M., Basti, on 12.8.2005.

The applicant submitted that the said order was challenged by opposite party No. 2 in Crl. Misc. Application No. 13109 of 2005 and an order was passed in the said application on 30.9.2005 that the contention of the applicant that only a non-cognizable offence was directed to be investigated with the permission of the learned Magistrate and a charge-sheet had been submitted in the same and the Magistrate has also taken cognizance, was not tenable and the revisional court had exceeded its jurisdiction in going into the merits of the matter. The case was directed to be listed on 22.11.2005. Till then, the operation of the order dated 16.7.2005, passed by the revisional court was stayed.

Then the applicant drew my attention to an order dated 29.10.2007 passed by this Court in Crl. Misc. Application No. 13109 of 2005, wherein the counsel for the applicant had submitted that the application had become infructuous. Hence, it was rejected and the interim order dated 30.9.2005 was vacated.

Learned Counsel for Respondent No. 2 submitted that he had got the criminal misc. application against the criminal revision vacated on the ground that the charge-sheet had been submitted. However, the applicant referred to a single-Judge decision of this Court in Ajay Kumar Agarwal v. U.P. State and Ors., 2000 Allahabad Dand Nirnaya 143: 1999 (3) ACR 2138, wherein there is a head-note that correctness of any decree or order cannot be refused only on the ground that the decree or order has already been executed. Because once the decree or order is set aside, the parties would return to their original position.

However, I am not in agreement with this contention of the applicant because it had been held by the Apex Court in Union of India v. Prakash Hinduja AIR 2003 SC 612: 2003 (3) ACR 2001 (SC) and H.N. Rishbud and Inder Singh Vs. The State of Delhi, that after the charge-sheet has been filed, even if there is a defect in investigation, the same cannot invalidate the charge-sheet. Therefore, there is no illegality in the order allowing submission of the charge-sheet.

The applicant then drew my attention to Annexure-15 to the affidavit to this application wherein some witnesses had denied having given any statements to the police in the N.C.R. case. The mere fact that some witnesses have denied their statements does not give any ground for quashing the charge-sheet.

It was further pointed out that there were some technical defects in Annexure-16 of the affidavit as some wrong sections have been mentioned in the site-plan. This is also no ground for quashing the charge-sheet.

He has further stated that the time of the incident has been given variably at different stages. This cannot be considered as a ground for quashing the proceedings in an application u/s 482, Cr. P.C.

What weight is to be assigned to the applicant''s contentions is for consideration by the trial court.

Lastly, the applicant submitted that there was a likelihood that the matter would be compromised between the parties. In my view, if this is the position, the same may still be done by the parties in the court below. However, it seems unlikely as if this were the case, the learned Counsel for the contesting opposite party would not have opposed the applicant in this Court.

In this view of the matter, there is no force in this application, which is hereby dismissed.

However, in the facts and circumstances of the case, I direct that if the applicant appears within one month from today and applies for bail before the courts below they shall dispose of the application expeditiously.

The trial court is directed to conclude the trial expeditiously.