Sudhir Kumar Srivastava Vs State of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko. and 2 Others

Neutral Citation No. - 2024:AHC-LKO:14476

Court No. - 28

Case :- APPLICATION U/S 482 No. - 1498 of 2024

Applicant :- Sudhir Kumar Srivastava Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko. And 2 Others

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Counsel for Applicant :- Utkarsh Srivastava,Amit Kumar Singh Counsel for Opposite Party :- G.A.,Padmesh Jain,Utsav Tiwari

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Hon'ble Brij Raj Singh,J.

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Sri Utsav Tiwari has filed his power on behalf of O.P. no. 3 which is taken on record.

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Heard Shri Utkarsh Srivastava, learned counsel for the applicant, Shri Utsav Tiwari, learned counsel for the opposite party no. 3 and learned AGA and perused the record.

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The present application under Section 482 CrPC has been filed with following prayer:-

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"I. Quash the impugned order dated 05.09.2023 passed by the learned Addl. Chief Judicial Magistrate-First, Lucknow in Criminal Case No. 15126 of 2016 arising out of case crime No. 246 of 2011 U/s 420 & 304 I.P.C., P.S. Kaisarbagh, Lucknow Titled as State of U.P Versus Dr. Vipul Shah.

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II. Pass the order or Issue direction to learned trial court to take on record carbon copy of original FIR no. 144/2011 dated 12/08/2011 of case crime no. 246 of 2011 u/s 420 & 304 IPC P.S. Kaisarbagh, district Lucknow from the applicant/informant and treat said FIR as original FIR in the place of presently available fabricated FIR u/s 420 & 304-A IPC for the case record and judicial proceeding of criminal case no 15126/2016 pertaining to Case Crime No. 246 of 2011, under Sections 420 & 304IPC, Police Station Kaisarbagh, District Lucknow titled State of Uttar Pradesh vs. Dr Vipul Shah.

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III. Pass the order or issue direction to SHO, P.S. Kaisarbagh, Lucknow to rectify Chik FIR and General Diary regarding case crime no 246/2011 to treat, consider and read the fabricated section 304-A IPC as section 304 IPC for official record and judicial proceedings etc."

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Learned counsel for the applicant has submitted that the applicant being the complainant had lodged the FIR registered as Case Crime No.246 of 2011 under Sections 304, 420 IPC which is annexed as Annexure No.2 to the present application. It has been submitted that the original copy of the FIR is not available nor it is part of the chargesheet whereas the FIR which is annexed as Annexure No.4 to the present application is lodged under Sections 420, 304 A IPC, Police Station-Qaiserbag, District-Lucknow. It has been submitted by the learned counsel for the applicant that it is manipulation and the original FIR which is lodged by the applicant is not made part of chargesheet. He has

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submitted that this Court may direct the trial court to make the original FIR (annexure no.2) part of the case diary.

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On the other hand, learned counsel appearing for opposite party no.3 has submitted that accused respondent no.3 had challenged the summoning order and chargesheet by means of application under Section 482 CrPC. It has been submitted that after hearing the opposite party no. 3 and the applicant, this Court had passed the order dated 30.05.2016. The relevant portion of the order dated 30.05.2016 is quoted below :-

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"Consequently, this petition succeeds in part. Chargesheet is not quashed. Order taking cognizance dated 11.03.2016, under Section 304/420 I.P.C. is quashed. Case for taking cognizance under Section 304-A/420 I.P.C. is definitely made out.

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C.J.M. is directed to pass fresh order in the light of observations made above within a week from the date a certified copy of this order is filed before him.

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Petitioner is directed to appear before the learned Magistrate within two weeks from today. If he surrenders within two weeks from today and apply for bail, his prayer for bail will be considered by C.J.M. in accordance with law, expeditiously, in view of the law laid down by Hon'ble Apex Court in the case reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. It is open for C.J.M. to resort to all the processes against petitioner which are admissible in law, if he does not surrender within fifteen days.

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It is clarified that observations made in the judgment will not influence the trial which will be decided on the basis of evidence adduced before the trial court. It is always open to Magistrate to alter the charge if he finds that a graver offence is made out."

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Learned counsel for the opposite party no.3 further submitted that once cognizance under Sections 304 and 420 IPC is no more available to the applicant; he cannot again come before this Court and say that the FIR which was filed by him annexed as Annexure No.4 to the present petition should be taken on record. He has further submitted that even if that FIR is taken on record the court below cannot take cognizance under Sections 304, 420 IPC because once the court has observed that the case of the applicant under Section 304A IPC will be tried, there is no question to turn around and request the Court to take cognizance for such document for which adverse observation has already been made. He has further submitted that the order passed by the Single Judge Bench of this Court has been affirmed by Hon'ble Supeme Court in Special Leave to Appeal No. 5236 of 2016 on 22.07.2016 and the said Special Leave to Appeal filed by Sudheer Kumar Srivastava has been dismissed.

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It has been submitted by learned counsel for the opposite party no. 3 that earlier the applicant had moved application under Section 482 for expediting the case and again by concealing material facts, he had made averment that the trial should be expedited under Sections 304 and 420 IPC which is a fraudulent act done by the applicant whereas this Court had already made observation in the Application U/S 482/378/407 No. 1670 of 2016 that cognizance under Sections 304 and 420 IPC will not be taken and the direction was issued that the court below will proceed under Sections 304A, 420 IPC. It has also been submitted by the learned counsel for the opposite party no. 3 that the expedite application

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which was filed as Case No.4379 of 2019 is a concealment of fact in which the applicant got order to expedite the case under Sections 304, 420 IPC.

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Learned A.G.A. has invited attention of this Court towards the provision under Section 91 CrPC and submitted that in view of the provision of Section 91 CrPC, the applicant can move appropriate application to summon any document for taking on record and this is not a suitable stage where he should move an application and request the Court to take the document on record.

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Considering the facts and circumstances of the case, it is observed that this Court has already passed order whereby the Coordinate Bench has observed that case will be proceeded against the accused under Sections 304A, 420 IPC and observation is also made to the effect that offence under Sections 304, 420 IPC will not be tried against the accused. The Special Leave to Appeal preferred by the applicant was also dismissed. It is to be noted that once the cognizance under Sections 304, 420 IPC cannot be taken which is affirmed by the Hon'ble Supreme Court, there is no question to make any observation at this stage. Therefore, the application is devoid of merit. Accordingly, it is dismissed .

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However, it is open for the applicant to move an appropriate application at the appropriate stage or any legal remedy available to him under the law.

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Order Date :- 19.2.2024 Raj

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Digitally signed by :- RAJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Sudhir Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko. and 2 Others

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Sudhir Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko. and 2 Others

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