Vijai Singh vs State of U.P.& Ors.

S.K. Phaujdar, J.—Through this application the applicant desired that a supplementary chargesheet dated 1041998 submitted by the CBI in case Crime No. 109 of 1997, PS. Kotwali, District Farrukhabad, subsequently renumbered as R.C. 3 (S)/97/CBI (SICIV/LKO) be quashed and further proceedings in S.T No. 2297 of 1997, pending in the court of Xth Additional Sessions Judge, Lucknow, best ayed.

It is not disputed that in the first chargesheet the applicant was named as an accused. It is, however, stated that his involvement was shown as a coconspirator only and there was no allegation of his actual presence at the spot of murder, rather it was stated that, after the conspiracy, he had left the place for another destination. Upon that initial chargesheet cognizance was taken and commitment was made giving rise to the aforesaid Sessions trial. It is not disputed that the matter is fixed for hearing on charge on 2891998.

Even after submission of chargesheet the CBI went on with further investigation and as a consequence thereof the impugned chargesheet dated 1041998 was submitted. It is the case of the petitioner that in this chargesheet the applicant has not been named as a person forwarded, but it has been indicated that he had taken part in the actual shoot out. Only this chargesheet is sought to be quashed on the ground that although 29 witnesses were examined, for most of them statements were not recorded and only some had made some statements. It was stated that copies of those statements were not made over to the accused.

A commitment is made under Section 209, Cr.P.C. of the whole case and not for any particular accused. Section 193, Cr.P.C. provides that a court of Sessions could take cognizance only on commitment of a case to it by a Magistrate. That commitment has already been made and cognizance has already been taken of the case. It is, therefore, within the competence of the Sessions Judge to take note of the materials gathered in further investigation, more so, when the trial is yet to begin by framing a charge. The purpose of further investigation has been clearly stated in Section 173(8), Cr.P.C. it states that nothing in this section shall be deemed to preclude further investigation in respect of an offence after the report under subsection (2) has been forwarded to the Magistrate. It further states that if upon investigation further evidence is obtained, either oral or documentary, the same is to be forwarded with a further report regarding such evidence in the form prescribed and the provision of subsections (ii) to (vi) shall apply in relation to that further report. Thus, the court is not without power to act upon the further report. It cannot be the law that if some evidence is not found during the first investigation, producing evidence after a further investigation would be barred, although the same is available. What would be the effect of the evidence will be seen at the trial but it may not be shut out at the initial stage. There is, however, some genuine grievance of the petitioner that the copies of the statements written during further investigation were not supplied to him. The Sessions Judge before taking up the matter for hearing is to ensure supply of such copies of which the prosecution proposes to rely.

The petitioner relied on a decision of the Allahabad High Court as reported in the case of Dharmendra Thpathi, 1997 ACC 61 : 1997 JIG 769 (All). Here was a chargesheet without compliance of provision of Section 173(2), Cr.P.C and the Court had quashed the same. In the instant case, however, we are not faced with any such situation. A chargesheet has already been acted upon being in conformity with Section 173(2), Cr.P.C. and only a further investigation, as permissible under the law, has disclosed certain new facts which also have been brought to the knowledge of the Court. Thus, the second chargesheet may not be quashed on this ground.

Sri Girdhar Nath, appearing on behalf of the CBI, relied on the decision of the Supreme Court reported in, 1994 SCC (Crl.) 63 which ruled that the powers under Section 482, Cr.P.C. should not be exercised to quash a proceeding by appreciating evidence at the stage when trial had not even commenced.

Reliance was also placed on another decision of the Supreme Court 1996 AWC 460. Here also it was observed that the High Court would be exceeding its jurisdiction by trying to appreciate evidence and coming to a conclusion that no offence was made out.

In can only be observed that when the Sessions Judge, is taking up the matter for hearing on charge, he will see that copies of the relevant documents are supplied to the accused before the matter is heard on the question of charge. He will be at liberty to go through the materials and to find out for himself if there was a case for framing charge.

The application stands dismissed with the aforesaid observations.