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Saurabh Shukla & Others vs State Of U.P. & Another on 24 April, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Case :- U/S 482/378/407 No. – 895 of 2019 Reserved

Applicant :- Saurabh Shukla Others

Opposite Party :- State Of U.P. Another

Counsel for Applicant :- Manoj Kumar Misra

Counsel for Opposite Party :- Govt. Advocate,Ravi Pratap Singh,Vinai Kumar Singh

Hon’ble Rajeev Singh,J.

1. Heard Shri Manoj Kumar Misra, learned counsel for applicants, Shri Aniruddh Kumar Singh, learned A.G.A. and learned counsel for the opposite party No.2.

2. This application under Section 482 Cr.P.C has been filed for quashing the impugned Charge-sheet No.01 of 2016 dated 15.08.2016 filed in Case Crime No.460 of 2016, under Sections 498A, 323, 504, 506, 354A I.P.C. Police Station Madiaon, District Lucknow, summoning order dated 13.10.2017 and quash the entire proceedings of Case No.50307 of 2017 pending before the learned Additional Chief Judicial Magistrate, Lucknow.

3. Learned counsel for the applicants submitted that the Investigating Officer has violated the provision of Chapter-XI of U.P. Police Regulation as well as Chapter-XII of the Code of Criminal Procedure 1973 and submitted the charge-sheet. He further submitted that the provision of Para-107 of U.P. Police Regulation, states that it is obligatory on the part of the Investigating Officer to give an opportunity to the accused persons of producing defence before him. As in the present case, the Investigating Officer failed to investigate the material and fact given by the accused/appellants.

4. Learned counsel for the applicants further submitted that the opposite party No.2 and her father both are working as Radio Operator in the Police Department. Therefore, the impugned charge-sheet was filed due to influence and cognizance was taken by the court below. As an application for further investigation was moved for apprising all the facts but the same was also rejected.

5. Learned counsel for the applicants further submitted that applicant No.1 is the husband of opposite party No.2, applicant No.2 is the mother-in-law of opposite party No.2, applicant No.3 is the brother-in-law of opposite party No.2 and applicant No.4 is the sister-in-law of opposite party No.2. As the marriage of applicant No.1 was solemnized with the opposite party No.2 on 09.12.2012 according to the Hindu rituals but after some days, it came into the knowledge of applicant No.1 that the opposite party No.2 is in relation with one Raj Bahadur, who is working along with opposite party No.2 in the same office. He further submitted that the applicants belong to the reputed family and when it came into the knowledge of applicant No.1 that the opposite party No.2 is having relation with the Raj Bahadur, then he tried to convince her for stopping the relations with the Raj Bahadur for the sake of their marriage and reputation in the society, then the opposite party No.2 started quarreling and this fact was also told to Raj Bahadur and Raj Bahadur gave threat to the applicant No.1 and 2. He further submitted that in the matrimonial home of opposite party No.2 only two members are there, applicant No.1 and another his old widow mother (applicant No.2) who is suffering from old age aliments. As the applicants No.3 and 4 are residing at District Sitapur have no concern except the relation being a brother-in-law and sister of applicant No.1.

6. Learned counsel for the applicants further submitted that the opposite party No.2 left the house of applicants and started living with Raj Bahadur since 21.07.2013, as a threat was given by Raj Bahadur to the applicant No.1. Therefore, applicant No.1 moved an application to the Senior Superintendent of Police, Lucknow on 12.12.2013 and informed that he received a call from Mobile No.8576037396 and a threat was given to leave opposite party No.2 by Raj Bahadur. The inquiry was ordered by Senior Superintendent of Police, Lucknow, thereafter, the statement of Raj Bahadur was recorded by the Inquiry Officer on 14.10.2013 in which he categorically stated that the opposite party No.2 was in relation with him and they were keen to solemnize the marriage but their relation was not accepted to the parents of opposite party No.2 and he also stated that the parents of opposite party No.2 given a threat to the opposite party No.2 that they will commit suicide, in case she entered into the marriage with Raj Bahadur, as a result, under pressure she consented for the marriage with the applicant No.1 and he also stated that after the marriage of opposite party No.2 with applicant No.1, he never met with the her but when she made a call to him and explained about the matrimonial dispute, then he interfered and he also accepted that he made a call to the applicant No.1 once but he denied the allegation of threat. On the assurance of the Raj Bahadur that he will not interfere in the matrimonial life of applicant No.1 and opposite party No.2, the proceeding was withdrawn by the applicant No.1 but the opposite party No.2 did not come back.

7. Learned counsel for the applicants further submitted that on 25.05.2016 at 7:30 p.m. opposite party No.2 came to the house of applicant No.1 and started making quarrel and forcibly entered into the house and taken ornaments and cash. Therefore, a written complaint was given by the applicant No.2, then the FIR as Case Crime No.459 of 2016, under Sections 323, 504, 506, 384 I.P.C., Police Station Madiyaon, District Lucknow was lodged on 30.05.2016 at 12:30 hours. This fact came into the knowledge of opposite party No.2 and her father, then on the basis of concocted fact, the opposite party No.2 moved application before the Police Station, as a result, FIR as Case Crime No.460 of 2016, under Sections 307, 354, 323, 504, 506 I.P.C., Police Station Madiyaon, District Lucknow was lodged at 22:30 hours and the applicants were arrayed as an accused. In the FIR, opposite party No.2 alleged that after marriage, she came to her in-laws’ house and after some days her brother-in-law (applicant No.3) and applicant No.4 came to the house of applicant No.1 at Lucknow and he started doing creepy-fun with opposite party No.2, as she was newly married, therefore, she kept mum and after some time, applicant No.3 tried to touch the body part of the opposite party No.2. This fact was stated to applicant No.1 and 2 but they ignored it and scolded her, as a result, she kept quit. On 21.11.2013 in the morning, she was beaten by the applicant No.1 and 2 and threat was given to her to keep silence, otherwise leave the house. Thereafter, she went to the Balrampur Hospital but her father tried to convince her that matrimonial dispute will be settled in a meeting, as the father of opposite party No.2 and the applicant No.1 and 2 tried to settle the issue but the applicant No.1 and 2 never accepted the guilt of applicant No.3 and they also did not agree to allow the opposite party No.2 in their house. As the sister-in-law also given threat to opposite party No.2 and after about three years, on 25.05.2016, she was called by the applicant No.1 and told that she will be allowed to stay in her matrimonial, when she will accept the behavior of applicant No.3, she refused, then the applicant No.1 and 2 started throttling her neck and also given beating with the Lathi, Danda and Kicks, as she ran away and made a call to control room and on the next day on 26.05.2016, she went to the Balrampur Hospital for her medical.

8. Learned counsel for the applicants further submitted that after lodging the FIR, the investigation was assigned to the Investigating Officer on 09.06.2016, the Investigating Officer tried to contact the opposite party No.2 but she told him that she is not in a position to give statement, she will give her statement under Section 161 Cr.P.C. after proper understanding. Thereafter, the statement of opposite party No.2 was recorded under Section 161 Cr.P.C. In her statement under Section 161 Cr.P.C., she stated that on 21.11.2013, she was beaten by applicant No.1, when she made a complaint about the molestation act of applicant No.3. As in the aforesaid statement she has categorically mentioned that she made a call to the control room, then the local police reached on the spot and she went to the Police Station along with the Police Personnel but in her FIR, she has stated that she ran away to save herself and on the next date, she went to the Hospital, therefore, there is a major contradictions in the statement of opposite party No.2 and the version of the FIR, but the Investigating Officer has not investigated properly. As in the statement of opposite party No.2 under Section 161 Cr.P.C. she failed to give the date of incident, when applicant No.3 tried to molest her and in her statement, she also accepted that she left her matrimonial house and started living in the hostel but this fact was not investigated by the Investigating Officer that since when opposite party No.2 was residing in the hostel and the site plan of her residence was also not prepared. As in the statement opposite party No.2 also accepted that Raj Bahadur is working in her office but she does not have any concern but the Investigating Officer failed to collect the call details of the opposite party No.2 as well as Raj Bahadur to know the truth.

9. Learned counsel for the applicants further submitted that the father of opposite party No.2 is also working as Assistant Radio Operator in the Police Department and he also reiterated the version of opposite party No.2 in her statement under Section 161 Cr.P.C. and also accepted that Raj Bahadur is working in the office of opposite party No.2 but she does not have any relation with him. Learned counsel for the applicants further submitted that Investigating Officer has also requested with the opposite party No.2 for recording her statement under Section 164 Cr.P.C. on 08.09.2016 but she avoided and told that her mother is sick and after her recovery, she will appear for recording the statement under Section 164 Cr.P.C.. On the request of the opposite party No.2, the investigation of case was transferred a number of time. He further submitted that the statement of independent witness namely Pradeep Kumar Shukla (Annexure-11) was also recorded by the Investigating Officer in which he categorically stated that the opposite party No.2 is in habit of quarrel, as the marriage of applicant No.1 was solemnized with her and in May, 2013, she left the house of applicant No.1. As the applicants are very gentle in nature, as so many time, mother of the applicant No.1 narrated the behavior of opposite party No.2 in the weeping condition. Similarly another neighbour namely Ankit Shukla also stated before the Investigating Officer under Section 161 Cr.P.C. that opposite party No.2 is quarrelsome lady and she moved the house of applicants in May, 2013 and again she came in the May, 2016 and did quarrel. Again the investigation was transferred and Mazid statement of opposite party No.2 was recorded on 22.04.2017, she reiterated the same story and again on 05.05.2017, the Investigating Officer requested for recording her statement under Section 164 Cr.P.C. but she was reluctant, as this fact was entered by the Investigating Officer in the case diary on 05.05.2017 (Annexure-16).

10. Learned counsel for the applicants further submitted that the Division Bench of this Court in Writ Petition No.29128 (M/B) of 2017 (Saurabh Singh Vs. State of U.P.) observed that the counter affidavit has been filed on behalf of Prosecuting Agency with the plea that Section 307 I.P.C. has been dropped from the list of offences. The audio compact disc has been received by the prosecuting agency through registered post, however, after the charge-sheet had been prepared and it was also informed by learned State Counsel that the charge-sheet has not been filed in the Court. The Writ Court directed the Circle Officer concerned to go through the contents of the compact disc of which transcript has been supplied with the application and thereafter, conclude investigation. Learned counsel for the applicants further submitted that Investigating Officer failed to consider the contents of the compact disc in the investigation and no investigation was done, as the Circle Officer was directed to go through the contents. He further submitted that the charge-sheet was filed by the Investigating Officer in the FIR No.460 of 2016 (supra) against the applicants and the cognizance was taken by the court below. As the applicants moved an application for further investigation, as the direction of the Writ Court was not complied with. He further submitted that the Investigating Officer failed to record the statement of Raj Bahadur and also did not go through the details of Mobile of opposite party No.2 as well as Raj Bahadur and father of opposite party No.2 to bring out the truth. As in the most mechanical manner, the application under Section 173 (8) Cr.P.C. was rejected by the court below by saying that the compact disc is the part of the case diary, as he stated that as per the provision of para 107 of U.P. Police Regulation, it is obligatory on the part of the Investigating Officer to investigate the contents of the compact disc but same has not been investigated.

11. Learned counsel for the applicants has also relied on the decision of Hon’ble Supreme Court in the case of Dharam Pal Vs. State of Haryana and Others reported in (2016) 4 SCC 160 that this Court can direct for further investigation despite commencement of trial and examination of some witnesses with the intention to bring truth out. In such circumstances, kind indulgence of this Court is necessary and the charge-sheet, cognizance order as well as the order for rejection of the further investigation be set aside.

12. Learned A.G.A. opposes the prayer of applicants and submitted that it is undisputed that the FIR No.459 of 2016 (supra) was lodged by the applicant No.2 against the opposite party No.2 on 30.05.2016 at 7:30 hours and thereafter, FIR was lodged on the written complaint of opposite party No.2, as Case Crime No.460 of 2016 (supra) at 22:30 hours on 30.05.2016 in the same Police Station. He further submitted that on 09.12.2012, the marriage of applicant No.1 was solemnized with the opposite party No.2 and she was being badly touched by the applicant No.3, when this fact was brought into the notice of applicant No.1 and 2, then she was beaten on 21.11.2013 and she was medically examined in the Balrampur Hospital. Thereafter, due to victimization, she left the house and started living in the hostel. After investigation, the charge-sheet has been filed and the cognizance has been taken. Therefore, there is no illegality in the order passed by the court below and the application for further investigation has been rightly rejected. He further submitted that the compact disc was submitted to the trail court with the supplementary charge-sheet.

13. Learned counsel for the opposite party No.2 submitted that the guilt of applicant No.3 was not being accepted, therefore, the differences were arisen and due to victimization and under compulsion she left her in-laws’ house and he further submitted opposite party No.2 do not have any relation with the Raj Bahadur. The statement of opposite party No.2 under Section 164 Cr.P.C. was recorded in which she categorically stated that character of her brother-in-law was not dignified, as number of time, he given bad touch to her and whenever, this fact was apprise to her husband and mother-in-law, then life threat was given by them and on 21.11.2013, opposite party No.2 was beaten by applicant Nos.1 and 2. He further submitted that the applicant No.1 was having extra material relation, therefore, a concocted story has been cooked up. As due to victimization, she lived in her matrimonial house only for seven months after marriage. As the Investigating Officer submitted the charge-sheet and cognizance was taken by the court below and there is no illegality. As further investigation is not needed and there is no violation of provision of Chapter-XI of U.P. Police Regulation as well as Chapter-XII of Code of Criminal Procedure.

14. Considering the arguments of learned counsel for the parties and going through the record, it is undisputed that the opposite party No.2 and Raj Bahadur are working in the same office, as the deposition of Raj Bahadur has not denied by the counsel for the opposite party No.2 as well as learned A.G.A. As the marriage of applicant No.1 and opposite party No.2 was solemnized on 09.12.2012. Thereafter, she went to her matrimonial house, as the opposite party No.2 admitted in her statement under Section 164 Cr.P.C. that she only lived seven months in her matrimonial house. Thereafter, under compulsion, she left the matrimonial house, as she also stated in her statement under Section 161 Cr.P.C. that she was residing in the hostel but the Investigating Officer failed to investigate the place, where she was residing and also failed to record the statement of her neighbours, where she was residing after seven months from her marriage. It is also undisputed that a complaint was given by the applicant No.1 on 12.10.2013 to the Senior Superintendent of Police, Lucknow that a life threat was given by the Raj Bahadur from Mobile No. 8576037396, thereafter, inquiry was conducted under the order of Senior Superintendent of Police, Lucknow and the statement of Raj Bahadur was recorded in which he categorically stated that opposite party No.2 and Raj Bahadur working in the same office, they were knowing each other and they were keen to entered into the marriage but the parents of opposite party No.2 was not accepting their relation and under their compulsion, opposite party No.2 entered into the marriage with the applicant No.1 and he never interfered in their matrimonial life but then opposite party No.2 made complaint to him, then he made a call to the applicant No.1 and he also stated that he never gave any threat and later on the complaint was withdrawn by the applicant No.1. As on 30.05.2016, the applicant No.2 lodged FIR as Case Crime No.459 of 2016 (supra) against the opposite party No.2 at 19:30 hours with the allegation that on 25.05.2016, opposite party No.2 came to their house and forcibly taken cash as well as ornaments, thereafter, on the same day, FIR as Case Crime No.460 of 2016 (supra) was lodged at about 22:30 hours by the opposite party No.2 against the applicants.

15. As it is evident that the impugned proceeding was initiated by lodging the FIR after about 3:00 hours, as the alleged incident was shown since 09.12.2012 up to 25.05.2016. As the statement of opposite party No.2 and her father was recorded by the Investigating Officer and they never levelled any allegation for demand of dowry, as the opposite party No.2 only alleged that applicant No.3 tried to molest her and applicant No.1 and 2 given threat to the opposite party No.2 for keeping mum and also given beating on 21.11.2013 and 25.05.2016 and she also accepted that Raj Bahadur is his colleague but she does not have any relation. Even in the initially complaint, mobile number of Raj Bahadur was also given by the applicant No.1 and in her statement under Section 161 Cr.P.C. (appended as Annexure-7), the opposite party No.2 accepted that she was residing in the hostel not with her parents after leaving her matrimonial house but no reason has been given but all these facts were not investigated by Investigating Officer. As the Investigating Officer requested with the opposite party No.2 for recording her statement under Section 164 Cr.P.C., on 08.09.2016 but she denied and thereafter, the statement of Pradeep Kumar Shukla and Ankit Shukla were recorded by the Investigating Officer (appended as Annexure-11) in which they categorically stated that in the month of May, 2013, the opposite party No.2 left the house of applicants and they also stated that opposite party No.2 was victimizing the applicant No.1 and 2. On 22.04.2017 Mazid statement under Section 161 Cr.P.C. of opposite party No.2 was recorded in which she stated that on the basis of concocted fact, FIR as Case Crime No.459 of 2016 (supra) was lodged by the applicant No.2 against her and by way of general allegation alleged that she was being victimized by the applicants for not giving dowry and also alleged that applicant No.1 is interested for marriage with someone else, again on 05.05.2017, the Investigating Officer recorded his finding in the case diary (parcha No.24) that the opposite party No.2 is reluctant in recording her statement under Section 164 Cr.P.C.. As the statement under Section 164 Cr.P.C. of opposite party No.2 was recorded on 01.07.2017 after about more than one year from the date of incident. As it reveals that the Investigating Officer continuously perused her for recording her statement under Section 164 Cr.P.C. but she was reluctant. As with the counter affidavit of opposite party No.2, her medical report dated 21.11.2013 and 26.05.2016 are annexed but these medical reports were not investigated by the Investigating Officer, as no statement of doctors have been recorded. As it is also found that the opposite party No.2 herself has stated that on 25.05.2016, she made a call to control room and local police reached on the spot, then she came to the Police Station along with the police party but she did not made any complaint and never requested for her medical examination, this fact was also not examined by the Investigating Officer. It is also evident that the Writ Court in Writ Petition No.29128 (MB) of 2017, passed following order on 13.12.2017:-

“(Application No.127878 of 2017)

1. The application seeks disposal of the writ petition. The application has been filed in context of order dated 1.12.2017. The order reads as under:-

“Learned counsel wants to file additional documents.

List as fresh as and when the documents are filed.”

2. Short counter affidavit has been filed on behalf of the prosecuting agency with the plea that Section 307 Indian Penal Code has been dropped from the list of offences. The audio compact disc has been received by the prosecuting agency through registered post, however, after the charge-sheet had been prepared.

3. Shri S.P.Singh, learned counsel for the State states that charge-sheet has not been filed in court.

4. We hereby direct the Circle Officer concerned to go through the contents of the compact disc of which transcript has been supplied with the application and thereafter conclude investigation, and not before.

5. With the above directions the petition as well as application are disposed of.

6. Superintendent of Police, Unnao is directed to ensure compliance of the order. ”

Where the Circle Officer concerned was directed to go through the contents of compact disc and conclude the investigation but the contents of the compact disc was not investigated only the compact disc was sent to the court below along with supplementary charge-sheet. As per the provision of Para 107 of U.P. Police Regulation, it is the duty of the Investigating Officer to find out the truth not merely to obtain conviction and he must always give accused persons an opportunity to produce defence before him and must consider such evidence carefully, if produced.

16. As the bone of contention was one Raj Bahadur but the Investigating Officer failed to investigate the call detail of Raj Bahadur as well as opposite party No.2 and the applicants to know their location and conversation to get the correct conclusion. As the Hon’ble Supreme Court in the case of Dharam Pal Vs. State of Haryana and Others (supra) as held that a direction for further investigation can be given despite commencement of trail and examination of some witnesses. As the State has duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person/accused of commission of cognizable offence. The relevant part of the judgment is reads as under:-

“25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the “faith” in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the “tour de force” of the prosecution and if we allow ourselves to say so it has become “idée fixe” but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one’s wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an “orphan under law”.

17. Considering the facts and circumstances of the case, direction of Writ Court dated 13.12.2017 in Writ Petition No.29128 (M/B) of 2017, statement of opposite party No.2 under Section 161 Cr.P.C., statement of father of opposite party No.2, observation of Investigating Officer related to reluctancy of opposite party No.2 in recording her statement under Section 161 Cr.P.C. dated 08.09.2016 and 05.05.2017, Mazid statement of opposite party No.2 and statement of opposite party No.2 recorded under Section 164 Cr.P.C., the application (u/s 482 Cr.P.C.) is allowed and the charge-sheet dated 15.08.2017, summoning order dated 13.10.2017 and order dated 13.11.2018 are here by set aside.

18. The Commissioner Police, Lucknow is directed to depute Investigating Officer not below the rank of Circle Officer to conduct further investigation in Case Crime No.460 of 2016 (supra), taking into consideration all the aspects discussed above and conclude the same expeditiously.

19. Office is directed to send the copy of this judgment to the trial court as well as the Commissioner of Police, Lucknow for compliance.

Order Date :- 24.04.2020

Amit/-

 

 

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