Sajid vs State of U.P.

Ravindra Singh, J.—This application has been filed by the applicant Sajid with a prayer to quash the charge-sheet of Case Crime No. 88 of 2008 under Sections 302, 307 and 120B, I.P.C. P.S. Bhawanpur district Meerut and also to quash the further proceedings arising out of the charge-sheet pending in the court of learned Chief Judicial Magistrate, vide Criminal Case No. 3502 of 2006.

The facts of the case in brief are that the F.I.R. has been lodged by the applicant Sajid against Ikram, Abrar, Manzoor and Babu on 29.5.2006 at 2.05 a.m. at P. S. Bhawanpur in respect of the incident which had allegedly occurred on 29.5.2006 at about 1.30 a.m., the distance of the police station was 4 km. from the alleged place of occurrence, alleging therein that in the night of 28/29.5.2006, the first informant was sleeping on the roof of his house, his maternal uncle, the deceased Intizar, his injured brother Haroon alongwith the family members were sleeping in their gher, at about 1.30 a.m. the accused Ikram and Abrar entered into gher, accused Manzoor and Babu remained at the gate of the gher, at the exhortation of the accused Babu, accused Ikram caused gun shot injury by 315 bore country made pistol on the person of the deceased Intizar, on hearing the sound of firing the injured left his cot and ran from there, the gun shot was discharged on him also by the accused Abrar at the exhortation of the accused Babu, the deceased Intizar died on the spot, the injured Haroon and the first informant went to the police station to lodge the F.I.R. According to the post mortem examination report of the deceased Intizar, he had sustained one gun shot wound of entry, having its exit wound and the injured Haroon had sustained multiple circular lacerated wounds caused by the fire arm, after investigation it was found by the Investigating Officer that the named accused Ikram, Babu, Abrar and Manzoor were falsely implicated, the offence was committed by the applicant, co-accused Haroon and Safayat and submitted the charge-sheet against them, the report for initiating the proceedings u/s 182, I.P.C. were also submitted by the Investigating Officer against the applicant Sajid because he had lodged the false F.I.R.

Heard Sri S. S. Shah, learned Counsel for the applicant, learned A.G.A. for the State of U. P. and Sri Nisaruddin and Shri Irshad Husain learned Counsel for Babu.

It is contended by the learned Counsel for the applicant that in the present case F.I.R. has been lodged by the applicant in which four persons were the accused, it was a prompt F.I.R. in the said incident maternal uncle of the applicant has been shot dead and brother of the applicant namely Haroon had sustained gun shot injury, the prosecution story is fully corroborated by medical evidence, even then the named co-accused persons have been exonerated by the Investigating Officer but the applicant and his brother, who had sustained injuries in the said incident, have been made the accused under the political influence exerted by the local M.L.A. who had been the Minister also, the Investigating Officer was not doing fair investigation and he had made up his mind to exonerate the real accused persons, who were named in the F.I.R., so that he arrested one Safayat on 25.4.2006, who has been charge-sheeted subsequently, and recorded his statement who nominated the injured Haroon and other accused, the applicant being aggrieved from the investigation, sent letter dated 10.7.2006 to the Secretary Home, for transferring the investigation from the district Meerut to some other district or transfer the matter to C.B.C.I.D. but no response was given by the Home Secretary, then the applicant approached the High Court by way of filing a Criminal Misc. Writ Petition No. 9431 of 2006 in which the arrest of the applicant was stayed vide order dated 7.8.2006, thereafter the local police submitted the charge-sheet in a hurry having the apprehension of transferring the investigation to C.B.C.I.D., it was submitted in the court of learned C.J.M., Meerut on 5.9.2006 because the writ petition filed by the applicant was to be heard on 6.9.2006 on hearing of the writ petition the High Court was pleased to direct on 6.9.2006 that in case the charge-sheet has not been submitted, the same shall not be submitted and if it has already been submitted the Magistrate will not proceed in the case. Pursuant to the High Court''s order C.B.C.I.D. took the investigation and collected the papers from the office of the C.J.M., Meerut, thereafter, the C.B.C.I.D. also submitted the charge-sheet on 10.7.2007 against the accused persons who were named in the F.I.R., prior to the filing of the charge-sheet by the C.B.C.I.D. the learned C.J.M., Meerut had already taken cognizance on the basis of the charge-sheet submitted by the local police against the applicant, after the submission of the charge-sheet by the C.B.C.I.D. the learned Chief Judicial Magistrate, Meerut has summoned the persons subsequently charge-sheeted, the learned C.J.M., proceeded against the applicant ignoring/rejecting the order dated 6.9.2006 by which it was directed that the Magistrate will not proceed in the case if the charge-sheet has already been submitted, in the present case the proceedings are going on in the court of learned C.J.M., Meerut on charge-sheet submitted by the local police and the C.B.C.I.D., which are contradictory. In this case both sides informant as well as accused of F.I.R. have been charge-sheeted by different investigating agencies, in such a situation, the prosecution of the applicant is illegal.

In reply to the above contention it is submitted by the learned A.G.A. and the learned Counsel appearing on behalf of Babu, who subsequently charge-sheeted that in the present case, charge-sheet has been submitted by the local police against the applicant on which the learned C.J.M., Meerut has taken cognizance on 5.9.2006, once the cognizance has been taken by the learned Magistrate concerned and he has summoned the applicant to face the trial, thereafter, the investigation was handed over to C.B.C.I.D. in which the applicant has not been charge-sheeted but different set of persons who were named in the F.I.R. have been charge-sheeted, have also been summoned by the learned Magistrate to face the trial, in such a situation the order of cognizance taken by the learned Magistrate concerned against the applicant cannot be quashed on the basis of subsequent charge-sheet filed by the C.B.C.I.D., the present application is devoid of merit and the same may be dismissed.

Considering the submissions made by the learned Counsel for the applicant, the learned A.G.A. and the learned Counsel appearing on behalf of the subsequently charge-sheeted accused-Babu and from the perusal of the record it appears that in the present case F.I.R. has been lodged by the applicant, which was promptly lodged, in the said incident one Intizar, maternal uncle of the applicant has lost his life and brother of the applicant-Haroon had sustained gun shot injury but after investigation the Investigating Officer has submitted the charge-sheet against the applicant, injured Haroon and Safayat and the named accused persons have not been charge-sheeted and they have been exonerated and on the basis of the charge-sheet submitted by the Investigating Officer, the learned C.J.M., Meerut has taken cognizance on 5.9.2006, thereafter on 6.9.2006 a Division Bench of this Court had passed order in Criminal Misc. Writ Petition No. 9431 of 2006 by which, it was directed that in the meantime in case charge-sheet has not been submitted the same shall not be submitted it has already been submitted the Magistrate will not proceed in the case, till then Petitioners (Sajid and Nafis) shall not be arrested in Case Crime No. 88 of 2006 under Sections 452, 302 and 307, I.P.C. P.S. Bhawanpur district Meerut subsequently, the Division Bench of this Court passed another order dated 11.10.2006 by which the investigation of Case Crime No. 88 of 2006 under Sections 452, 302 and 307, I.P.C. has been transferred to C.B.C.I.D. with direction to conclude the investigation expeditiously and shall submit the report within two months, and it was open for the C.B.C.I.D. to obtain the papers from the Court of C.J.M., Meerut whether the charge-sheet has been submitted by the previous Investigating Officer and the learned A.G.A. was directed to inform about the status of the investigation done by the C.B.C.I.D. on the next date fixed, thereafter, the C.B.C.I.D. has taken investigation and collected the paper from the court of C.J.M., thereafter, submitted the charge-sheet on 10.7.2007 in the court of C.J.M., Meerut, against the persons who were named in the F.I.R. on which the learned Magistrate concerned summoned the person who were charge-sheeted.

In this case investigation has been done by two different agencies, first of all investigation was done by the local police by which the charge-sheet has been submitted contrary to the F.I.R. version implicating the first informant as accused on which the learned Magistrate concerned has taken cognizance, thereafter, the investigation was handed over to C.B.C.I.D. by the Division Bench of this Court, who has submitted the charge-sheet not in consonance with the earlier charge-sheet but it has been filed relying upon the F.I.R. version against the persons named in the F.I.R., both the charge-sheets are of different nature having different sets of accused and in both the charge-sheets accused persons have been summoned to face the trial, now issue involved in the case is whether both the sets of accused will be prosecuted of or it is settled position of law that if the cognizance has been taken on the basis of the charge-sheet submitted by the Investigating Officer of local police on which the cognizance has been taken by the learned Magistrate concerned, the order of cognizance cannot be quashed on the basis of the subsequent charge-sheet or the police report if it is filed in contrary to earlier charge-sheet but there is a provisions for moving an application for discharge also. Any of the charge-sheet may be quashed by this Court if it is found that prima facie on the basis of the material collected by the Investigating Officer, no offence is made out or sufficient material is not available to proceed further against the person. In the present case material collected by the Investigating Officer in the both the charge-sheets is not available, in such a situation it is very difficult to express any opinion on the basis of the material collected by the Investigating Officer, the same may be considered by the trial court, therefore, in case any discharge application is moved or objections are raised at the stage of framing of the charge, the same shall be heard and disposed of in accordance with law, it is not proper to express any opinion on the charge-sheet submitted by the Investigating Officer of the civil police against the applicant and the subsequent charge-sheet submitted against the person who were named in the F.I.R. therefore, it is directed that the applicant and other co-accused persons who have been charge-sheeted shall appear before the court of learned C.J.M., Meerut through their counsel within 30 days from today and shall move an application for committing the case to the Court of Sessions on that application the next date for committing the case to the Court of Sessions shall be fixed on that date the applicant and other accused shall appear In person before the learned Chief Judicial Magistrate concerned. The learned Chief Judicial Magistrate, shall commit the case to the Court of Sessions, after completing the necessary formalities as of supplying the copy of charge-sheet etc. to the accused, thereafter, in case, the applicant moves the application for discharge in the court of learned Sessions Judge, Meerut through his counsel, the same shall be heard and disposed of expeditiously in accordance with the provisions of law, till the disposal of that application no coercive steps shall be taken against the applicant but he shall appear in the Court on every date fixed there. In default, this order shall be deemed vacated.

With the above direction this application is finally disposed of.