Sanjay Saraswat and Another vs State of U.P. and Another

Ravindra Singh and N.A. Moonis, JJ.—Heard Sri. V.C. Mishra, senior advocate assisted by Sri. Veer Singh, learned Counsel for the Petitioners, learned A.G.A. for the State of U.P and Sri. R.P.S. Chauhan, appearing on behalf of the complainant.

This petition has been filed by the Petitioners Sanjay Saraswat and Manoj Kumar Gupta with a prayer:

(i) to issue a writ, order or direction in the nature of mandamus commanding the Respondents to call Sri. Dr. Krishna Pal Singh and his wife Smt. Nasreen Singh, staff nurse and prosecute them for the offence u/s 182/304, I.P.C. and effecting their arrest for the same and submitted the charge-sheet to the said effect.

(ii) and to issue a writ, order or direction in the nature of mandamus commanding the Respondents to make a proper application u/s 321, Code of Criminal Procedure as per observation made by Hon''ble Mr. Justice A.K. Roopanwal in its judgment contained as Annexure-5 dated 17.9.2007.

The facts in brief of this case are that one Krishna Pal Singh lodged the F.I.R. against the Petitioners on 26.7.1994 at P.S. Civil Lines, Badaun in Case Crime No. 438 of 1994 u/s 307, I.P.C. alleging therein that at about 10.45 p.m. on 26.7.1994, the first informant alongwith his wife Smt. Nasreen Singh and younger brother Ratibhan Singh were sitting in the courtyard of their house, all of a sudden the Petitioners alongwith one unknown person came there on a bullet motorcycle, the Petitioner Sanjay Saraswat discharged a shot towards Ratibhan Singh who sustained gun-shot injury, the injured Ratibhan Singh was medically examined on 26.7.1994 at 11.45 p.m. at District Hospital, Badaun. According to the medical examination report he had sustained one gun-shot wound of entry on the left thigh. The injury was having blackening also subsequently the injured succumbed to his injury, thereafter the case was converted u/s 302, I.P.C. The matter was investigated by the local police and the final report was submitted in favour of the accused persons, but the final report was rejected by learned Chief Judicial Magistrate, Badaun and the order of reinvestigation was passed on 13.5.1998, thereafter charge-sheet against the Petitioners was submitted by the Investigating Officer, but before submission of the charge-sheet, the Petitioner Manoj Kumar Gupta was arrested by the police subsequently he was released on bail by the Court but the Petitioner Sanjay Saraswat was absconding.

On the basis of the charge-sheet dated 16.10.1999 submitted by the Investigating Officer the learned Chief Judicial Magistrate, Badaun has taken the cognizance vide order dated 21.2.2000, the charge-sheet was challenged by the Petitioner No. 1 by way of filing the Criminal Misc. Application No. 2116 of 2000 which has been dismissed on 17.5.2000, thereafter without obtaining the permission from the Court concerned, the Government of Uttar Pradesh entrusted the further investigation of this case to C.B.C.I.D. vide letter No. 126mm/6.12.2000-9(43)(D)/2000 dated 26.4.2000. Thereafter the enquiry report dated 29.1.2002 has been submitted in the Court of learned C.J.M. concerned mentioning therein that the first informant Dr. K.P. Singh and Smt. Nasreen Singh have committed the alleged offence punishable u/s 182/304, I.P.C. thereafter another report has been submitted to the same effect in addition to it that Petitioners have been falsely implicated in the present case, such report of further investigation dated 19.2.2008 was submitted in the Court of learned Addl. Session Judge/F.T.C. Court No. 5, Badaun on 20.2.2008 where S.T. No. 990 of 2006 against the Petitioner Manoj Kumar Gupta was pending. It was mentioned in the report of the further investigation that no credible evidence could be collected against the Petitioners regarding their participation in the commission of the alleged offence. On its basis the Government of Uttar Pradesh has decided to withdraw the prosecution of the Petitioners, in pursuance of such Government''s letter dated 6.2.2003 an application was moved by the Public Prosecutor u/s 321, Code of Criminal Procedure for withdrawing the prosecution of the Petitioners in the Court of learned C.J.M., Badaun, the same was dismissed on 30.6.2003. It was challenged in the revisional Court by way of filing the Criminal Revision No. 222 of 2003, which was dismissed by Special Judge (D.A.A.), Badaun on 26.8.2006. The above mentioned orders dated 30.6.2003 and 26.8.2006 were challenged before this Court by way of filing the Criminal Misc. Writ Petition No. 13465 of 2006, the same has been dismissed on 17.9.2007. On other hand Krishna Pal Singh and Smt. Nasreen Singh have challenged the order of investigation entrusted to the C.B.C.I.D. and its report that the material constituting the offence u/s 182/304, I.P.C. has been collected, its charge-sheet is ready against the first informant Krishna Pal Singh and his wife Nasreen Singh and the letter dated 23.8.2003 sent to Officer Incharge of P.S. Civil Line, Badaun for making their arrest by way of filing the Criminal Misc. Writ Petition No. 5603 of 2003 in which the officers of C.B.C.I.D. have been directed not to harass the first informant Krishna Pal Singh and his wife.

It is contended by learned Counsel for the Petitioners that the Petitioners are innocent, they have not committed the alleged offence, even after investigation the Investigating Officer came to the conclusion that the Petitioners have been falsely implicated, so the final report has been submitted but without any proper reason it has been rejected by the C.J.M., Badaun and order of the reinvestigation has been passed. The order of reinvestigation is not permissible under the law. After re-investigation without collecting any cogent evidence the charge-sheet has been submitted against the Petitioners, on which the learned C.J.M., Badaun has taken the cognizance without applying the judicial mind. It is surprising that on such a charge-sheet the case has been committed to the Court of Session against Petitioner Manoj Kumar Gupta. The Government of U.P was not satisfied with the investigation done by the civil police, therefore, its further investigation was transferred to C.B.C.I.D. The C.B.C.I.D. came to the conclusion that the Petitioners have been falsely implicated, in fact the offence was committed by Krishna Pal Singh and his wife Smt. Nasreen Singh and recommended for their arrest u/s 182/304, I.P.C. On the basis of the report of C.B.C.I.D., the State of U.P had decided to withdraw the prosecution of the Petitioners. Thus, application was moved in the Court of learned C.J.M., Badaun but the same was rejected on a technical ground. In such circumstances the prosecution of the Petitioner is illegal and without any proper reason the first informant of this case namely Krishan Pal Singh and his wife Smt. Nasreen Singh who have committed the alleged offence have not been arrested by the police and the charge-sheet has not been submitted against them in the Court. Therefore, to meet the ends of justice, it is necessary that a suitable direction may be issued to the Respondents to submit the charge-sheet in the Court u/s 182/304, I.P.C. against Krishna Pal Singh and his wife Smt. Nasreen Singh and they may be prosecuted after making their arrest and the proceedings pending against the Petitioners may be quashed and suitable direction may be issued to the State Government to file a fresh application u/s 321, Code of Criminal Procedure before the Court concerned.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the complainant that the Petitioners are powerful and influential persons, in this case prompt F.I.R. has been lodged, the alleged offence has been committed at the house of deceased and first informant, it was witnessed by the first informant and his wife Smt. Nasreen Singh but due to nexus of the Petitioners with the police the proper investigation was not done by S.I.S., Bareilly and illegally submitted the final report in the Court of learned C.J.M., Badaun, thereafter the final report dated 6.6.1996 was rejected by learned C.J.M. on 27.4.1998 directing for reinvestigation, in fact it was not reinvestigation but it was a further investigation, thereafter a further investigation of this case was done by the Investigating Officer of P.S. Ujhani who submitted the charge-sheet on 16.10.1999. The validity of this charge-sheet dated 16.10.1999 was challenged by the Petitioner No. 1 before this Court by way of filing the Criminal Misc. Application No. 2116 of 2000 u/s 482, Code of Criminal Procedure, it was dismissed on 17.5.2000. The order dated 17.5.2000, passed by another Bench of this Court has become final, therefore, the plea taken by the Petitioner that charge-sheet was illegally submitted in pursuance of order passed by learned C.J.M. concerned after doing reinvestigation has already been considered and has been rejected. It may not be re-considered, by this Court. In the present case the Petitioner No. 1 is still absconding whereas the order of declaring him proclaimed absconder has also been passed by the Court concerned and the learned C.J.M. has already taken the cognizance of the charge-sheet submitted in the present matter, thereafter the case of the Petitioner Manoj Kumar Gupta has been committed to the Court of Sessions, therefore, on the basis of subsequent report of the further investigation done by the C.B.C.I.D. in favour of the Petitioners, the proceedings may not be quashed.

So far as the withdrawal of the case u/s 321, Code of Criminal Procedure is concerned, this application has already been rejected by C.J.M., Badaun vide order dated 30.6.2003, it was challenged by way of filing Criminal Revision No. 222 of 2003, the same was dismissed by Sessions Court on 26.8.2006, the above mentioned orders have been challenged by way of filing the Criminal Misc. Writ Petition No. 13465 of 2006, the same has been dismissed by another Bench vide order dated 17.9.2007, the order dated 17.9.2007 has become final in which no such order directing the Respondent to file a fresh application u/s 321, Code of Criminal Procedure has been passed, therefore, such order may not be passed in this petition.

So far as the conclusion drawn by C.B.C.I.D. in respect of the first informant and his wife Smt. Nasreen of this case is concerned, it has also been considered by the another Bench of this Court because the arrest warrant dated 23.8.2003 issued by the C.B.C.I.D. against the first informant and his wife Smt. Nasreen Singh has been challenged by them by way of filing Criminal Misc. Writ Petition No. 5603 of 2003, in which the interim order dated 18.9.2003, 27.10.2003, 16.12.2003, 18.10.2006 and 23.5.2009 have been passed by another Bench of this Court questioning the legality of further investigation conducted by the C.B.C.I.D. without taking the permission of the Magistrate concerned, in which the arrest warrant has been stayed, the said interim orders are still operative. It is further submitted that another Bench of this Court is monitoring the investigation and trial of the present case in Criminal Misc. Writ Petition No. 5603 of 2003. The Petitioners are accused, they are having no right to interfere in the investigation and the proceedings of trial. The Petitioner No. 1 is absconding for the last 15 years, he has been declared proclaimed offender by learned C.J.M., Badaun by order dated 6.2.2007 and Petitioner No. 2 has also filed the Writ Petition No. 6290 of 2009 for quashing the proceedings of S.T. No. 990 of 2006, the same has been dismissed on 26.3.2009. The present petition is misconceived and it is having no substance, it may be dismissed.

Considered the submissions made by learned Counsel for the Petitioners, learned A.G.A., learned Counsel for the complainant and from the perusal of the record it appears that so far as the first relief is concerned, it is subjudice before the another Bench who is monitoring the case in Writ Petition No. 5603 of 2003, therefore, it is not proper to decide this issue of further investigation done by C.B.C.I.D. on merit, it may be considered in above mentioned writ petition. The issues of quashing the charge-sheet including the proceedings of trial have already been decided in negative by the High Court, it cannot be reconsidered, such prayer is refused. So far as the second prayer is concerned for issuing the direction to the State for filing the fresh application u/s 321, Code of Criminal Procedure before the Court concerned, this issue has already been considered by the another Bench of this Court in Writ Petition No. 13465 of 2006, it is open to the State Government to move a fresh application u/s 321, Code of Criminal Procedure for which no direction is required, it is prerogative of the State Government not of the Petitioners who are accused, therefore, we refuse the prayer to issue the direction to the Respondents to file a proper application u/s 321, Code of Criminal Procedure

In view of the above discussion, we are of the opinion that this writ petition is having no substance, accordingly it is dismissed.