# Akshay & Anr v. State of U.P. & Anr. Opp. Parties - **Citation:** (2024) 2 ILRA 1274 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-12-11 - **Case number:** Application u/s 482 No. 45056 of 2023 - **Bench:** Manoj Baja - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akshay-anr-v-state-of-u-p-anr-opp-parties-50878 - **Pages:** 3 ## Headnote Criminal Law - Criminal Procedure Code, 1973 - Sections 155(2), 173(2), 173(8) & 482 - Indian Penal Code, 1860 - Sections 307, 323 & 506 - Application u/s 482 - challenging the summoning order - NCR - investigation - applicant arguing that the investigation into Case Crime (initially NCR) was invalid due to non-compliance with Section 155(2) Cr.P.C. when Section 307 I.P.C. was added - Court finds that - the accused had not raised this issue at the appropriate time, and the Magistrate had already permitted investigation under Section 155(2) Cr.P.C. curing any procedural irregularity - held - the summoning order under Section 307 I.P.C. is valid and based upon correct appreciation of law and conflicting police reports must be judicially examined - finding no merits in the application, therefore Application is accordingly, dismissed. (Para - 6, 8) Application Dismissed. (E-11) List of referred Cases: - ## Text 1274 INDIAN LAW REPORTS ALLAHABAD SERIES 13. Resultantly the application fails and is accordingly, dismissed. ---------- (2024) 2 ILRA 1274 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.12.2023 BEFORE THE HON'BLE MANOJ BAJAJ, J. Application u/s 482 No. 45056 of 2023 Akshay & Anr. ...Applicants Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicants: Sri Ajatshatru Pandey Counsel for the Opp. Parties: G.A. Criminal Law - Criminal Procedure Code, 1973 - Sections 155(2), 173(2), 173(8) & 482 - Indian Penal Code, 1860 - Sections 307, 323 & 506 - Application u/s 482 - challenging the summoning order - NCR - investigation - applicant arguing that the investigation into Case Crime (initially NCR) was invalid due to non-compliance with Section 155(2) Cr.P.C. when Section 307 I.P.C. was added - Court finds that - the accused had not raised this issue at the appropriate time, and the Magistrate had already permitted investigation under Section 155(2) Cr.P.C. curing any procedural irregularity - held - the summoning order under Section 307 I.P.C. is valid and based upon correct appreciation of law and conflicting police reports must be judicially examined - finding no merits in the application, therefore Application is accordingly, dismissed. (Para - 6, 8) Application Dismissed. (E-11) List of referred Cases: - 1. Vinay Tyagi Vs Irshad Ali @ Deepak & ors., 2013 (5) SCC 762. (Delivered by Hon'ble Manoj Bajaj, J.) 1. Applicants being accused have approached this Court through this application under Section 482 Code of Criminal Procedure to challenge the order dated 21.11.2023 passed by Additional Chief Judicial Magistrate, Court No.1, Mathura in Case No. 7075 of 2019, titled State Vs. Akshay Bhardwaj and another, arising out of Case Crime No. 1297 of 2017, under Sections 307, 323, 506 I.P.C., Police Station Kotwali, District Mathura, summoning them in relation to the added offence punishable under Section 307 I.P.C. 2. Learned counsel for applicants submits that initially NCR No. 94/2017 dated 28.9.2017 under Sections 323, 506 I.P.C. was registered against the accused at Police Station Kotwali, Chowki Krishna Nagar, Mathura at the instance of complainant namely, Prem Singh, and subsequently, during the pendency of the investigation, the offence punishable under Section 307 I.P.C. was added on 18.12.2017. According to him, the investigation in the alleged crime commenced without the compliance of the mandatory provisions of Section 155(2) Cr.P.C. and on the basis of the opinion given by the doctor relating to the injuries suffered by the victim, a charge sheet bearing No. 803 of 2018 dated 6.8.2018 was filed under Section 173(2) Cr.P.C. against the applicants. He submits that NCR Case No. 94 of 2017, after addition of Section 307 I.P.C. was converted as Case Crime No. 1297 of 2017. 3. Learned counsel for applicants has further pointed out that on the basis of 2 All. Akshay & Anr. Vs. State of U.P. & Anr. 1275 request by the accused made before S.S.P. Mathura, followed by an order of the Magistrate dated 18.12.2019, further investigation commenced in the above case and the offence punishable under Section 307 I.P.C. was substituted with the offence punishable under Section 308 I.P.C. on 29.10.2020. According to learned counsel, at this stage also, further investigation remained pending, wherein through charge sheet dated 7.12.2020 the offence punishable under Section 307 I.P.C. stood deleted, and the concession of regular bail too was extended to the accused in respect of the remaining offences i.e. Sections 323 and 506 I.P.C. 4. Learned counsel further drew the attention of the Court to the order dated 15.11.2022 and submitted that in the criminal revision no. 386 of 2022 filed by the complainant-opposite party no.2, the order dated 22.4.2022 passed by the Magistrate, summoning the applicants for the offence punishable under Section 323, 506 I.P.C. was set aside and case was remanded back before the Magistrate for deciding it afresh in accordance with law. Learned counsel for applicants submits that now through the impugned order dated 21.11.2023, applicants have been summoned for the alleged commission of offences punishable under Section 307 I.P.C., and he prays for indulgence of this Court on the sole ground that the investigation being in violation of Section 155(2) Cr.P.C. is without jurisdiction, therefore, it deserves to be set aside. 5. During the course of hearing, it is not disputed by learned counsel for applicants that offence punishable under Section 307 I.P.C. was added on 18.12.2017 and thereafter, the investigation had commenced. He fairly states that after submission of final report under Section 173(2) Cr.P.C., further investigation commenced on the request of the accused persons. 6. After hearing the learned counsel for applicants and considering the sole ground pressed in this application to challenge the order dated 21.11.2023, this Court finds that grievance relating to the non compliance of the provisions of Section 155(2) Cr.P.C. ought to have been raised by the accused when initially the investigation in NCR No. 94 of 2017 commenced in the year 2017. Admittedly, the accused never made any such grievance at that stage and this argument has been raised after addition of Section 307 I.P.C., which is otherwise rendered insignificant in view of the conduct of the accused, who even did not raise this issue when charges against them were framed on 15.6.2022 (Annexure No. 12) for alleged commission of offences punishable under Section 323 and 506 I.P.C. 7. Notably, initially the case was registered as NCR No. 94 of 2017 for alleged commission of offences punishable under Section 323 and 506 I.P.C., but subsequently, the offence punishable under Section 307 I.P.C. was also added and the investigation, if any, before the addition of Section 307 I.P.C. did not result in any miscarriage of justice to the accused, much less any prejudice, therefore, in the given facts, this circumstance alone would not vitiate the investigation as the irregularity, if any, committed by the Investigating Officer stood cured by the Magistrate vide order dated 19.12.2017 permitting the investigation in NCR No. 94 of 2017. Above all, vide order dated 19.12.2017 the Additional Chief Judicial Magistrate, Mathura had passed the order in terms of 1276 INDIAN LAW REPORTS ALLAHABAD SERIES Section 155(2) Cr.P.C. relating to the investigation in NCR No. 94 of 2017, and the said order was also never challenged by the accused, much less in this application. Thus, this Court does not find any merit in the argument relating to the violation of Section 155(2) Cr.P.C., which has been raised after a long delay, therefore, the same is hereby rejected. 8. Now, while analysing the impugned order dated 21.11.2023, it becomes clear that the Additional Chief Judicial Magistrate, Mathura has specifically observed that as per the first report filed under Section 173(2) Cr.P.C., the offence punishable under Section 307 I.P.C. is made out against the accused, but when cognizance order against the accused was passed solely on the basis of supplementary report under Section 173(8) Cr.P.C. relating to the offences punishable under Section 323, 506 I.P.C., it would not mean that charge regarding Section 307 I.P.C. contained in the first report stood rejected, as there is no such order passed by the court. Consequently, the court proceeded to summon the accused for the alleged commission of offence punishable under Section 307 I.P.C. also. A reading of the impugned order would show that the same is based upon correct appreciation of law, and if, there are conflicting reports submitted by police in a case, the court of competent jurisdiction is to examine both the reports to arrive at a just conclusion. In this regard, a reference can be made by Hon'ble Supreme Court in Vinay Tyagi v. Irshad Ali @ Deepak and others, 2013 (5) SCC 762. 9. No other argument has been raised by the learned counsel for the applicants. 10. Resultantly, this Court does not find any convincing ground to exercise the inherent powers under Section 482 Cr.P.C. The application is accordingly, dismissed. ---------- (2024) 2 ILRA 1276 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 25.01.2024 BEFORE THE HON'BLE ARUN KUMAR SINGH DESHWAL, J. Application u/s 482 No. 45646 of 2023 Netrpal ...Applicant Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicant: Sri Surya Nath Bhatt, Sri Gaurav Kumar Srivastava Counsel for the Opp. Parties: G.A. (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power, Indian Penal Code, 1860 - The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 15-A , 15-A(3), 15-A(5) & 15A(11) - Rights of victims and Witnesses, The Protection of Children from Sexual Offences Act, 2012 - Sectio 7/8, The Protection of Children from Sexual Offences Rules, 2020 - Rule 4(15) - Victim/complainant has right to information about proceedings - Investigating Officer must inform them. (Para -7) Petitioner seeks to quash summoning order under POCSO Act - Court expresses displeasure over police authorities' failure to serve notice to complainant/victim despite statutory provisions. (Para - 1,2)