Allowed

Rinku Singh v. State of U.P. and Another

Allahabad HC29 Mar 2023A482/3473/2023

Case brief

AI extract

What is this about?

A single judge allowed an application under Section 482 Cr.P.C., setting aside the order rejecting a Section 91 Cr.P.C. application and the subsequent order framing charges. The court held the trial court committed an illegality by failing to consider a mandatory inquiry report before cognizance and framing charges, directing remittal for fresh decision.

What did the court decide?

Impugned order dated 03.12.2022 and order framing charges dated 02.03.2023 set aside; matter remitted to trial court for fresh decision.

Rinku Singh Vs State of U.P. and… — Constitutional and Fundamental Rights | Allahabad HC (2023)

¶1

A.F.R.

¶2

Court No. - 68

¶3

Case :- APPLICATION U/S 482 No. - 3473 of 2023

¶4

Applicant :- Rinku Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kripa Kant Pandey,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.

¶5

Hon'ble Mrs. Manju Rani Chauhan,J.

¶6

Heard Mr. Rajiv Lochan Shukla, learned counsel for the applicant and Mr. Amit Singh Chauhan, learned A.G.A. for the State.

¶7

The Present case has been filed assailing the order dated 03.12.2022 passed by learned Additional District and Sessions Judge, Fast Track Court, Second, District- Hapur in Special Session Trial No.159 of 14 (New No.78 of 2015) vide which the applicant’s application under Section 91 Cr.P.C. has been rejected.

¶8

Brief facts of the case are that an FIR was lodged by opposite party no.2, S.I. Sanjay Tyagi, against the applicant and co-accused Gaurav Tyagi on 03.07.2014, which was registered as Case Crime No.297 of 2014, under Section 18/20 of N.D.P.S. Act, at Police StationPilakhua, District- Hapur. The applicant was arrested, after which, he was produced before the Court concerned on 04.07.2014 in police custody and remand was sought by the Police/Investigating Officer and the learned Court below allowed the remand of the applicant till 18.07.2014 vide order dated 04.07.2014. The Court concerned while allowing the remand has recorded the statement of the present applicant on oath. Considering the aforesaid natural and trustworthy statement of the present applicant as well as the provisions of Section 58 N.D.P.S. Act, the Court below directed the Superintendent of Police, Hapur to conduct an inquiry regarding the reality and correctness of the First Information Report dated 03.07.2014 and further directed that the said inquiry report be placed before the learned Court below. The

¶9

Investigating Officer was directed to give a copy of the aforesaid order to Superintendent of Police, Hapur, DIG, Meerut Range, Meerut by order dated 05.07.2014 and submit a report before the Court concerned. The DIG, Meerut was directed to be given a copy of the aforesaid order with the observation that he may direct Superintendent of Police, Hapur to place the enquiry report before the Court concerned and shall also supervise the enquiry.

¶10

Pursuant to the order dated 04.7.2014 passed by the learned Additional District and Sessions Judge, Ghaziabad, the Superintendent of Police, Hapur, placed the letter before the learned Court below dated 05.07.2014 whereby one week’s further time was sought by him to submit the aforesaid inquiry report as directed by order dated 04.07.2014. On the aforesaid application, the learned Court below vide order dated 07.07.2014 directed that the said enquiry report may be submitted before the learned Court below prior to 17.07.2014.

¶11

After completing the investigation, charge sheet was submitted against the present applicant on 30.08.2014 and accordingly, the learned Court of Sessions Judge, Ghaziabad took cognizance on the aforesaid charge sheet vide order dated 13.10.2014 and the applicant was summoned to face the trial, registering the case as Special Session Trial No.159 of 2014 (State Vs. Rinku).

¶12

In the meantime, the present session case was transferred to District Hapur from the Court of District Judge, Ghaziabad on 23.11.2015 by order of District Judge Ghaziabad dated 21.11.2015 in view of order passed by the Hon’ble High Court and the same was received by the District Court Hapur. Thereafter, the aforesaid case was registered before the Sessions Judge, Hapur as Special Session Trial No.78 of 2015 (State Vs. Rinku).

¶13

The present applicant appeared before the aforesaid Court and moved an application under Section 91 Cr.P.C. on 25.08.2017, whereby

¶14

¶15

he prayed that the enquiry report as directed by Court below vide order dated 04.07.2014 may be considered before framing charge. The aforesaid application has been rejected vide order dated 03.12.2022 and charges have been framed on 02.03.2023, hence, the present application has been filed.

¶16

Learned counsel for the applicant submits that if the Court is satisfied that the material of sterling quality has been withheld by the Investigator/Prosecutor, it can summon or rely upon the same, even if, such document is not part of the charge sheet, hence, the Court has committed illegality in not considering the fact, though, the enquiry report which was important for proper adjudication of the matter was not placed before the concerned Court. The Court should not have proceeded to take cognizance of the matter. In support of his submission, learned counsel for the applicant has relied upon a judgement of Hon’ble Apex Court, passed in case of Nitya Dharmananda @ K. Lenin Vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda, reported in 2018 (102) ACC 635.

¶17

He further submits that as per Section 91 of Cr.P.C., documents necessary and desirable for proper adjudication of the matter was to be placed before the Court concerned prior to taking cognizance on the charge sheet so submitted and in the present case when such an enquiry report was directed to be placed before the Court below by order dated 04.07.2014, therefore, the same could not have been ignored.

¶18

Learned A.G.A. opposing the submission as placed by learned counsel for the applicant, submits that Section 91 of Cr.P.C. does not confer any right on the accused to produce documents in order to prove his defence. He further submits that allowing the application under Section 91 Cr.P.C. would mean to interfere in the investigation/trial.

¶19

¶20

Before appreciating the legal submission as made by learned counsel for the parties, it would be appropriate to place Section 91 of Cr.P.C., which is as follows:

¶21

“’Section 91 of Cr.P.C. Summons to produce document or other thing:- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons or order.

¶22

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

¶23

(3) Nothing in this section shall be deemed-

¶24

(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or

¶25

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

¶26

This Court feels that the Court below vide order dated 04.07.2014 directed for an enquiry to be conducted and the same be placed before the Court concerned, however, without realizing the fact that the Court had passed the aforesaid order being satisfied that an inquiry was required to find out the reality and save an innocent person from being punished, the inquiry report was a material of sterling quality, which was to be placed before the Court concerned prior to taking cognizance.

¶27

Section 91 of Cr.P.C. also requires that in case any Court or any officer in charge of a police station considers that the production of any

¶28

¶29

document or other thing is necessary and desirable for the purposes of any investigation, inquiry, trial or any other proceeding under this Code by or before such Court or officer, such Court is required to issue summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it prior to summoning the accused.

¶30

In the present case, it was by order of the Court below, the inquiry was directed to be conducted and the report to be placed before the Court below and even after the same was pointed out by means of an application being moved by the applicant under Section 91 Cr.P.C., the Court ignoring the aforesaid fact has committed illegality in rejecting the aforesaid application.

¶31

It is settled law that at the stage of summoning or framing of charge, the accused cannot ordinarily invoke section 91 Cr.P.C. However, the Court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case is so require, even if the accused may have no right to invoke section 91 and the Court is satisfied that the material available with the investigator, not made part of the charge sheet, has crucial bearing on the issue of summoning or framing of charge, it can always direct the investigator/prosecutor/trial Court to place the same before the Court concerned for proper adjudication of the matter.

¶32

This Court also feels that when the initial order taking cognizance is bad, therefore, consequential order framing charges against the applicant has to be set aside.

¶33

It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. The aforesaid has been held by the Apex Court in the case of State

¶34

¶35

of Punjab vs. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770.

¶36

Similarly, the Apex Court in the case of Mangal Prasad Tamoli vs. Narvadeshwar Mishra reported in (2005) 3 SCC 422 , has held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside.

¶37

In view of the above discussion, the impugned order dated 03.12.2022 and consequential order dated 02.03.2022 framing charges against the applicant, cannot be legally sustained and are hereby set aside . Matter is remitted back to Additional District and Sessions Judge, Fast Track Court, Second, District Hapur for decision afresh. While deciding the matter, he shall pass a reasoned and speaking order, keeping in mind the relevant provisions of Section 91 of Cr.P.C. and the observation made by this Court, preferably within a period of one month from the date of production of certified copy of this order, if there is no legal impediment.

¶38