Dismissed

Smt. Sumitra Devi and 4 Ors. v. State of U.P. and Another

Allahabad HC16 Jul 2022A482/34630/2019

Case brief

AI extract

What is this about?

Applicants moved under Section 482 CrPC to quash criminal proceedings based solely on a subsequent final police report filed after cognizance was taken. The High Court held that both reports must be read conjunctly by the trial court and dismissed the application. However, noting the applicants are women, they were permitted to file bail applications.

What did the court decide?

Application dismissed; Applicant-bail applications directed to be filed within one week.

Smt. Sumitra Devi and 4 Ors. Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2022)

¶1

Court No. - 80

¶2

Case :- APPLICATION U/S 482 No. - 34630 of 2019

¶3

Applicant :- Smt. Sumitra Devi And 4 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vikas Srivastava Counsel for Opposite Party :- G.A.,Ajendra Kumar

¶4

Hon'ble Rajeev Misra,J.

¶5

Heard Mr. Vikash Srivastava, the learned counsel for applicants, the learned A.G.A. for State and Mr. Ajendra Kumar, the learned counsel representing, first informant/opposite party-2

¶6

This application under section 482 Cr.PC has been filed challenging entire proceedings of Criminal Case No. 387 of 2017 (State Vs. Sumitra Devi and others) arising out of Case Crime No. 340 of 2017 under Sections 147, 148, 149, 323, 504, 506, 325 and 308 I.P.C., Police Station-Awagarh, District-Etah, as well as order dated 09.08.2019 passed by Civil Judge (Junior Division)/Judicial Magistrate, Jalesar Etah, Court No. 18, District-Etah, in aforementioned case whereby non-bailable warrants as well as coercive process under Sections 82/83 Cr.P.C. has been issued against applicants, now pending in the court of Civil Judge (Junior Division)/Judicial Magistrate, Jalesar Etah, Court No. 18, District-Etah.

¶7

3. Perused the record.

¶8

Record shows that in respect of an incident, which is alleged to have occurred on 23.05.2017, a delayed F.I.R. dated 24.05.2017 was lodged by first informant/opposite party-2, Turram Singh and was registered as Case Crime No. 387 of 2017 under Sections 147, 148, 149, 307, 323, 504, 506 I.P.C., Police Station-Awagarh, District-Etah. In the aforesaid F.I.R. five persons, namely, Sumitra Devi, Neetoo, Suneeta, Babita and Prateek Yadav have been nominated as named accused whereas three unknown poersons have also been arraigned as accused.

¶9

The gravamen of the allegations made in the F.I.R. are to the effect that named accused alongwith others committed criminality upon first informant/opposite party-2 and his other family members on account of which, one Satendra Kumar sustained injuries.

¶10

After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. Injured was got medically examined by Police itself. The injury report of injured Satendra Kumar has been brought as Annexure R. A-1 to the rejoinder affidavit filed in Criminal Misc. Application under Section 482 Cr.P.C. No. 11515 of 2021 (Satendra Kumar and another Vs. State of U.P. and another). Thereafter Investigating Officer examined first informant/opposite party-2 and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, which is substantially adverse to the accused. Investigating Officer came to the conclusion that complicity of some of the accused is established in the crime in question. He, therefore, opined to submit a charge sheet. Accordingly, Investigating Officer submitted the charge-sheet dated 26.05.2017 whereby all the named accused been charge-sheeted under Sections 147, 148, 149, 323, 325, 308, 504, 506, Police Station-Awagarh, DistrictEtah

¶11

After submission of aforesaid charge-sheet, Cognizance was taken upon same by concerned Magistrate vide Cognizance Taking Order/Summoning Order dated 10.10.2017 passed by Civil Judge (Junior Division)/Judicial Magistrate, Jalesar Etah, Court No. 18, District-Etah. As a consequence of above, Criminal Case No. 387 of 2017 (State Vs. Sumitra Devi and others) under Sections 147, 148, 149, 323, 325, 308, 504, 506 I.P.C., Police Station-Awagarh, District-Etah came to be registered.

¶12

One of the named accused, namely, Prateek Yadav earlier approached this Court by filing an application under Section 482 Cr.P.C. No. 7750 of 2018 (Prateek Yadav Vs. State of U.P. and another), which was dismissed vide order dated 13.04.2018. For ready reference order dated 13.04.2018 is reproduced herein under:

¶13

"Heard learned counsel for the applicant, Shri Ajit Kumar, learned counsel of O.P. No. .2 and learned A.G.A.

¶14

The applicant has invoked the jurisdiction of this Court under section 482 Cr.P.C. with a prayer to quash the cognizance order dated 10.10.2017 and entire criminal proceedings of criminal case no. 387 of 2017, State of U.P. Vs. Sumitra Devi and others, arising out of case crime no. 340 of 2017, under sections 147, 148, 149, 323, 504, 506, 308, 325 I.P.C. P.S. Awagarh, District Etah.

¶15

The contention of learned counsel for the applicants is that no offence against the applicant is disclosed and the present prosecution has been

¶16

instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.

¶17

Learned counsel for the applicant has further submitted that the applicant is a juvenile and therefore in view of the provisions of section 23 of the Juvenile Justice (Care and Protection of Children) Act. 2000 and further in view of provisions of section 27 of the Code of Criminal Procedure, 1973 which reads as under, the cognizance taken by the learned magistrate vide order dated 10.10.2017 is bad in the eye of law and therefore, the proceeding is liable to be quashed.

¶18

Section 23 in The Juvenile Justice (Care and Protection of Children) Act, 2000

¶19

23. Punishment for cruelty to juvenile or child.? Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.

¶20

Section 27 in The Code Of Criminal Procedure, 1973

¶21

27. Jurisdiction in the case of juveniles. Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

¶22

Per contra, learned counsel for O.P. No.2 as well as learned A.G.A. has vehemently urged that after taking of cognizance and summoning of the accused applicant, the applicant has not yet appeared before the court and on account of his absence, bailable warrant vide order dated 19.12.2017 has also been issued against him, yet he has not appeared before the court. It is further submitted that the applicant has not yet been declared juvenile by the competent court, therefore, the provisions of section 23 of Juvenile Justice (Care and Protection of Children) Act 2000 and section 27 of the Code of Criminal Procedure, 1973 are not applicable in the case of the applicant. Instead of appearing before the court and raising his plea of juvenility the applicant has come before this Court for quashing of the order taking cognizance and issuing the summon, which is not permissible in the eye of law.

¶23

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs.

¶24

Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.

¶25

The application filed under section 482 Cr.P.C. is bereft of merit and is accordingly dismissed.

¶26

Order Date :- 13.4.2018 "

¶27

As per the martial on record, during pendency of aforementioned proceedings as noted above, an application dated 08.08.2017 is alleged to have been submitted by applicant-1, Sumitra Devi before Senior Superintendent of Police, Etah. On the aforesaid application, concerned Senior Superintendent of Police passed an order directing further investigation in the matter. Pursuant to above order passed by Senior Superintendent of Police, Etah, further investigation commenced in the matter. On the basis of subsequent material collected by Investigating Officer during course of further investigation, he came to the conclusion that no occurrence as alleged has occurred. He, accordingly, submitted a police report dated 16.05.2019 (final report) under Section 173 (2) Cr.P.C.

¶28

Since applicants failed to appear before court below therefore court below passed an order dated 09.08.2019 whereby non-bailable warrants as well as coercive process under Sections 82/83 Cr.P.C. have been issued against applicants.

¶29

Thus, feeling aggrieved by above, applicants, who are charge-sheeted accused in afore-mentioned case crime number, have now approached this Court by means of present application under Section 482 Cr.P.C.

¶30

Present application came up for admission on 20.09.2019 and this Court passed the following order:

¶31

"Sri Ajendra Kumar, Advocate has filed vakalatnama on behalf of the opposite party no. 2 today in Court, which has been taken on record.

¶32

Heard applicants' counsel as well as learned A.G.A. for the State and learned counsel for the opposite party no. 2. Perused the record.

¶33

Submission of learned counsel for the applicants is that further investigation into the case was directed which has been conducted and a report in that regard has already been submitted to the court concerned, according to which the allegations as have been made against the applicants were found to be false. It was also found in further investigation that even the medical reports relied upon earlier were not genuine. The presence of the accused persons was not found substantiated as a result of which, the police submitted report that the conclusion that was drawn against the accused earlier on the basis of which charge sheet was submitted, remained unsubstantiated and for all

¶34

practical purposes the result of further investigation exonerates the applicants from all charges. Submission is that in such situation the continuation of proceedings going on against the applicants will result in nothing except an abuse of court's process.

¶35

Contentions raised at the bar require detailed hearing on law and facts both.

¶36

Notices need not be issued to the other side as learned A.G.A. has accepted notice on behalf of the State while Sri Ajendra Kumar, Advocate has filed vakalatnama on behalf of the opposite party no.2.

¶37

Opposite party no.2 may file counter affidavit within three weeks. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter.

¶38

List this matter immediately after expiry of the aforesaid period before the appropriate Bench.

¶39

Till the next date of listing, further proceedings of Criminal Case No. 387 of 2017, arising out of Case Crime No. 340 of 2017, u/ss. 147, 148, 149, 323, 504, 506, 325, 308 I.P.C., P.S.- Awagarh, District Etah, with regard to applicants namely Smt. Sumitra Devi, Neetu Yadav, Sunita Yadav, Babita Yadav and Prateek Yadav, shall remain stayed."

¶40

In compliance of above order dated 20.09.2019, pleadings have been exchanged between the parties. Counsel for the parties agree that present application be disposed of finally at the admission stage itself.

¶41

In view of the consent of the counsel for parties and as provided under the Rules of the Court, present application is being disposed of finally at the admission stage itself.

¶42

Mr. Vikas Srivastava, learned counsel for applicants contends that in view of subsequent police report dated 16.05.2019 submitted by the Police pursuant to further investigation in the matter, no cause of action survives to continue the proceedings of aforementioned criminal case. He then submits that applicants- 1, 2, 3 and 4 are ladies whereas applicant-1, Sumitra Devi is mother of applicants- 2, 3, 4 and 5 and wife of real younger brother of first informant/opposite party-2. The entire family has been falsely implicated. No occurrence as alleged ever occurred. Applicants are innocent. Allegation made in F.I.R. are false and concocted. They have been falsely implicated. On the aforesaid premise, it is sought to be contended that present criminal proceedings are not only malicious but also an abuse of the process of Court. Consequently, same are liable to be quashed by this Court.

¶43

Per contra, the learned A.G.A. for State and Mr. Ajendra Kumar, the learned counsel representing first

¶44

informant/opposite party-2 have opposed the present application. Learned counsel for first informant/opposite party2 submits that upon completion of statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C., Investigating Officer on the basis of material collected by him during the course of investigation including the statement of first informant and other witnesses examined by him, which is substantially adverse to applicants, came to the conclusion that prima-facie offence complained off is established against named accused. On the basis of above, Investigating Officer submitted the charge-sheet dated 09.08.2017. Perusal of charge-sheet goes to show that as many as 14 prosecution witness of fact have been nominated therein. He, therefore submits that at this stage, it cannot be said that prosecution case is false or there is no material to support the prosecution of applicants.

¶45

It is further contended by the learned counsel representing first informant/opposite party-2 that in respect of same occurrence giving rise to present application, an application under section 156 (3) Cr.P.C. was filed by applicant-1, Sumitra Devi. The said application was supported by an affidavit of Sumitra Devi. The same is on record as part of Annexure C.A.3 to the counter affidavit filed by first informant/opposite party2 in present application. On the aforesaid premise, it is vehemently contended by learned counsel representing first informant/opposite party-2 that occurrence giving rise to present application is admitted to applicant-1, Sumitra Devi,

¶46

It is then contended that no irregularity or illegality has been pointed out in the investigation of aforementioned case crime number. Charge-sheet is the outcome of investigation. Once no illegality or irregularity has been pointed out in investigation of concerned case crime number, the consequential charge sheet cannot be challenged.

¶47

19.It is lastly contended that that it is an undisputed fact that the charge-sheet was submitted against applicants on 09.08.2017, upon which, cognizance was taken by court concerned vide Cognizance Taking Order dated 10.10.2017. An application before concerned Senior Superintendent of Police was filed by applicant1-applicant-1, Sumitra Devi but subsequent to Cognizance Taking Order Dated 10.10.2017 passed by court concerned upon submission of aforesaid charge-sheet. Placing reliance upon the judgement of Apex Court in Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another, (2019) 17 SCC 1, it is urged by Mr. Ajendra Kumar that no further investigation could have been directed by concerned Senior Superintendent of Police without obtaining

¶48

leave of the Court. As no prior permission was obtained before proceedings with further investigation of concerned case crime number in terms of Section 173 (8) Cr.P.C., the subsequent police report is wholly illegal and also irrelevant to decide the veracity of the cognizance taken by court below on the earlier charge-sheet. On the aforesaid premise, he submits that no case for interference is made out and therefore, present application is liable to be rejected by this Court.

¶49

Learned A.G.A. has substantially adopted the arguments raised by learned counsel for first-informant/opposite party-2. He, however, submits on the basis of instructions received by him that after submission of charge-sheet dated 09.08.2017, upon which cognizance was taken by court concerned vide Cognizance Taking Order dated 10.10.2017, applicant-1 Sumitra Devi filed an application dated 08.08.2017 before Additional Superintendent of Police, Etah praying therein that further investigation be done in the matter. Aforesaid application was forwarded to the Senior Superintendent of Police, Etah. Concerned Senior Superintendent of Police passed an order dated 09.05.2018 directing further investigation in the matter in terms of Section 173 (8) Cr.P.C. In compliance of above, the Investigating Officer submitted an application dated 20.05.2018 before court concerned praying therein that photocopies of documents be supplied for further investigation. The said application was allowed by court concerned vide order dated 30.05.2018. On the aforesaid premise, learned A.G.A. contends that the ratio laid down in Vinubhai Haribhai Malaviya (supra) shall not be applicable in present case.

¶50

It is then contended by learned A.GA. that court concerned has taken cognizance upon the charge-sheet dated 09.08.2017 vide Cognizance Taking Order dated 10.10.2017. The same is in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. As such, same is a Judicial order and also a final order. However, the same has not been specifically challenged. What has been challenged is the proceedings of the criminal case, which admittedly have emerged after the cognizance has been taken.

¶51

According to learned A.G.A, the words charge-sheet and final report are not defined in the Code of Criminal Procedure. The Code i.e. Cr.P.C. refers only to police report submitted by police under Section 173 (2) Cr.P.C. On date, there are two police reports before the Court, What shall be the procedure to be followed by Courts in aforesaid situation now stands settled in Vinay Tyagi Vs. Irshad Ali, (2013) 5 SCC 762, wherein following has been observed in paragraph 42 of the judgement;

¶52

"42.Both these reports have to be read conjointly and it is the

¶53

cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code."

¶54

On the aforesaid premise, the learned A.G.A. submits that the effect of the two reports has to be considered by the Magistrate and thereafter, pass appropriate order which shall in consonance with the scheme of the Code i.e. Cr.P.C. as well as the observations made by Court in Vinay Tyagi (supra). It is thus urged by learned A.G.A. that in view of above, this Court should refrain from undertaking aforesaid exercise itself. He therefore submits that no ground exits to entertain the present application. Same is liable to be dismissed.

¶55

When confronted with aforesaid, learned counsel for applicants could not overcome the same.

¶56

Having heard learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant/opposite party-2 and upon perusal of material on record and looking into the facts of the case as noted above, this Court is of the view that no case for interference is made out at this stage. Court below shall pass an appropriate order after considering both the police reports submitted before it.

¶57

Consequently, present application fails and is liable to be dismissed.

¶58

It is accordingly dismissed.

¶59

However, considering the fact that applicants 1, 2, 3 and 4 are ladies therefore they may file their bail applications before trial court within a period one week from today. In case bail applications are filed by aforesaid applicants within the time period mentioned then court below shall dispose of the bail applications of aforesaid applicants on the same day in the light of provisions contained in proviso to Section 437 Cr.P.C.

¶60

Order Date :- 16.7.2022

¶61

¶62

Digitally signed by YASHWANT KUMAR Date: 2022.07.19 17:25:35 IST Reason: Location: High Court of Judicature at Allahabad

Smt. Sumitra Devi and 4 Ors. v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Smt. Sumitra Devi and 4 Ors. v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs State of Up and Another

Gaurav Singh@ Sannu and Another Vs State of U.P. and Another

Sakim and 3 Others Vs State of U.P. and Another

Rai Sahab and 3 Others Vs State of U.P. and Another

Mayank Gurjar and 3 Others Vs State of U.P.and Another

Rajesh Gond Vs State of U.P. and Another