# Nitesh Kumar Verma v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-22
- **Case number:** U/S 482/378/407 No. 3589 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitesh-kumar-verma-v-state-of-u-p-anr-46495
- **Pages:** 8

## Headnote

Govt. Advocate, Priyanka Singh, Umesh Chandra

Trial and cognizance cannot be set aside
unless
illegality
in
investigation
bring
micarriage
of
justice-invalidity
of
investigation
has
no
relevanceto
the
competence of Court.

Petition dismissed. (E-9)

List of Cases cited:

## Text

248 INDIAN LAW REPORTS ALLAHABAD SERIES
considered
by
this
Court
in
Carona
Ltd.v.Parvathy Swaminathan & Sons[(2007) 8
SCC 559] , and noticed that where the
jurisdiction of a court or a tribunal is dependent
on the existence of a particular state of affairs,
that state of affairs may be described as
preliminary to, or collateral to the merits of the
issue. The existence of a jurisdictional fact is
thus a sine qua non or condition precedent to the
assumption of jurisdiction by a court. InRamesh
Chandra Sanklav.Vikram Cement[(2008) 14
SCC 58 : (2009) 1 SCC (L&S) 706] , this Court
held that by erroneously assuming existence of
the jurisdictional fact, a court cannot confer
upon itself jurisdiction which otherwise it does
not possess."

14. The trial in a warrant case starts with
the framing of charge. Before framing of charge
it cannot be said that Special Judge was trying of
any offence under Section 3(1) of PC Act. The
trial starts from framing of charges. Since, it is
admitted fact in this case that the sole accused
person died before the charges could be framed
and even before taking of cognizance, therefore,
the stage of trying any offence under Section
3(1) of the PC Act did not arise as has been held
in the aforesaid judgement of Jitendra Kumar
Singh. Trying of PC offence is a jurisdictional
fact to the exercise of power under Sub section 3
of Section 4. Since, learned Special Judge was
not trying any offence as the trial did not
commence. The sole public servant in this case
already died before framing of charges,
therefore, the trial did not start. The Special
Judge had no occasion to try any case against the
present accused applicant under the PC Act as
no charge was framed prior to the death of the
public servant, hence, the jurisdictional fact did
not exist so as to enable the Special Judge to
exercise jurisdiction with regard to non-PC
offence.

15. In view of the above, the petition
succeeds. The impugned order dated 26.8.2021
passed by the Special Judge Anti-Corruption,
CBI (West), Lucknow in the Case No.1113 of
2018 is set aside and learned Special Judge is
directed to send the papers of the case to the
competent court for trial of accused in
accordance with law within a period of four
weeks' from the date of receipt of a certified
copy of this order. Office is directed to send
copy of this order to learned Special Judge
concerned for compliance.
----------
(2021)11ILR A248
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 No. 3589 of 2018

Nitesh Kumar Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sushil Kumar Singh

Counsel for the Opposite Parties:
Govt. Advocate, Priyanka Singh, Umesh Chandra

Trial and cognizance cannot be set aside
unless
illegality
in
investigation
bring
micarriage
of
justice-invalidity
of
investigation
has
no
relevanceto
the
competence of Court.

Petition dismissed. (E-9)

List of Cases cited:

1. St. of Har. Vs Bhajan Lal & ors. 1992 Supp (1)
Supreme Court Cases 335

2. R.A.H. Siguran Vs Shankara Gowda @Shankara
reported in (2017) 16 SCC 126

3. H.N. Rishbud & anr. Vs St. of Delhi reported in
1955 Cr.L.J. 526
11 All. Nitesh Kumar Verma Vs. State of U.P. & Anr.
249
4. M/s Fertico Marketing & Investment Pvt. Ltd. and
Ors. etc. Vs C.B.I. & anr. reported in 2020 SCC Online
SC 395

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Sushil Kumar Singh, learned
counsel for the applicant, Sri Anirudh Kumar
Singh, learned AGA-I and Ms. Priyanka Singh,
learned counsel for the opposite party no. 2.

2. By means of this petition the applicant
has prayed for quashing of the Charge-sheet
dated 10.3.2018 and the entire criminal
proceedings in pursuance of charge-sheet
pending in the court of IVth A.C.J.M., Court no.
22, Sultanpur arising out of Case Crime No. 163
of 2017 u/s 323, 504, 506, 354, 427, 376 IPC,
P.S. Goshaiganj, District Sultanpur pending in
Crl. Misc. Case No. 408 of 2018 (State vs.
Pankaj & Others).

3. The precise question for consideration is
whether the investigation carried out by the
incompetent authority and charge-sheet filed by
the same authority would make the investigation
and charge-sheet as nullity in the eyes of law.
Further as to whether the order of cognizance of
the Magistrate taking cognizance of the same
charge-sheet would also be nullity.

4. For addressing and replying the
aforesaid question some brief facts of the case
would be necessary to be considered.

5. In the present case a F.I.R. was
registered on 6.11.2015 bearing N.C.R. No. 314
of 2015 u/s 323, 504, 427 IPC against four
persons namely, Pankaj Verma s/o Ram Kumar
Verma, Pradumma Verma s/o Keshavram
Verma, Nitesh Kumar Verma s/o Keshavram
Verma and Keshavram Verma s/o Sitaram
Verma, Police Station Gosainganj, District
Sultanpur. However, the bare narration of the
F.I.R. revealed that the family members of the
complainant namely, Smt. Rampatta Devi w/o
Siyaram Verma had sustained injuries on the
body and head.

6. Feeling aggrieved from the aforesaid
inaction on the part of the police to register the
case in N.C.R. instead of regular crime case the
complainant
of the
F.I.R.
namely,
Smt.
Rampatta Devi filed an application u/s 155(2)
Cr.P.C. before the court of Magistrate on
8.1.2016. Learned Magistrate after perusing the
allegation of the F.I.R. directed, vide order dated
25.1.2016, the S.H.O. concerned to register such
case and investigate, therefore, the said case was
registered under Crime No. 163 of 2017.

7. After completion of investigation the
charge-sheet was filed on 10.9.2017 u/s 354,
323, 504, 506 and 427 I.P.C.

8. As per the material available on record
the daughter of the complainant has recorded her
statement under section 161 Cr.P.C. on 8.8.2017
and u/s 164 Cr.P.C. on 31.8.2017 making
specific allegations against Pankaj Verma and
Nitesh
Kumar
Verma
(petitioner
herein)
regarding outraging of her modesty and attempt
to rape. Therefore, it appears that the Circle
Officer of the area while indicating his
dissatisfaction
regarding
investigation
and
charge-sheet wherein the section relating to the
attempt of rape was missing directed the S.H.O.,
Gosainganj, District Sultanpur to depute any
other officer to conduct further investigation,
returning back the charge-sheet with the
complete case diary. Thereafter the S.H.O.
concerned vide order dated 19.2.2018 has
deputed one Sri Rana Pratap Singh, S.I., P.S.
Gosainganj,
Sultanpur
to
conduct
further
investigation and submit his report.

9. The aforesaid officer has further
conducted the investigation and recorded the
statement of complainant as well as other 12
witnesses including some independent witnesses
250 INDIAN LAW REPORTS ALLAHABAD SERIES
who were not related with the family of the
complainant. However, the earlier charge-sheet
which was filed on 10.9.2017 the statement of
only seven witnesses were recorded. On the
basis of statement of aforesaid 12 persons
including
the
independent
witnesses,
the
complainant and of the victim and after perusing
the statement of the victim recorded u/s 161 and
164 Cr.P.C. submitted supplementary chargesheet on 10.3.2018 u/s 376 and 511 I.P.C.
against Pankaj Kumar Verma s/o Ram Kumar
Verma and Nitesh Kumar Verma s/o Keshav
Ram Verma bearing no. 1A/2017.

10. Learned counsel for the petitioner has
assailed the charge-sheet dated 10.3.2018 on the
ground that the investigation conducted by the
incompetent officer Sri Rana Pratap Singh
inasmuch as at the relevant point of time he was
serving on the post of Head Constable
(Promotional
Pay
Scale)
whereas
such
investigation could not have been conducted by
any officer lower in rank of Sub-Inspector.

11. So as to strengthen the aforesaid
argument Sri Sushil Kumar Singh has drawn
attention of this Court towards Annexure no. 13
which is a notification dated 15.9.1997 being
issued by the Principal Secretary of the
Department of Home, Police Services which was
issued under the authority of Governor invoking
the provisions of section 157 Cr.P.C. authorising
the Head Constable (Promotional Pay-Scale) of
the U.P. Police to conduct the investigation in
minor case e.g. investigation relating to sections
160,323,324,504,506 IPC, pick-pocketing, theft
of bicycle or electricity wire or cattle-car or theft
at railway platform to the extent of Rs. 25,000/-,
offence relating to the Motor Vehicle Act and
relating to section 4(25) of Arms Act. He has
further drawn attention of this Court towards
Annexure - 14 which is a compliance order of
the notification dated 15.9.1997 being issued by
the Director General of Police, U.P. He has also
drawn attention of this Court towards Annexure
no. 13 which is an information provided to the
father of the petitioner by the Nodal Officer, RTI
/ Addl. S.P., Sultanpur dated 28.4.2018 which
says that the Investigating Officer concerned
namely, Sri Rana Pratap Singh was serving on
the post of Head Constable (Promotional Pay
Scale) w.e.f. 20.2.2018 to 10.3.2019 at P.S.
Gosainganj, District Sultanpur. On the basis of
aforesaid documents Sri Sushil Kumar Singh has
submitted that at the particular point of time
when Sri Rana Pratap Singh had conducted the
investigation was not the competent authority to
conduct the investigation and to submit chargesheet u/s 376 and 511 IPC.

12. He has drawn attention of this Court
towards section 157 Cr.P.C. which categorically
provides that only the competent authority shall
be deputed to conduct the investigation and in
the present case the competent authority has not
been deputed to conduct the investigation and to
file charge-sheet u/s 376 and 511 IPC.

13. He has also placed reliance of the
dictum of Apex Court in re: State of Haryana
vs. Bhajan Lal and others 1992 Supp (1)
Supreme Court Cases 335 referring para
113,119 and 120 to submit that the Apex Court
has held that the investigation by the designated
police officer is the rule of the investigation and
by an officer of lower rank is an exception.

14. Per contra, Ms. Priyanka Singh has
drawn attention of this Court towards the
counter affidavit filed by the victim (Mamta
Kumari) referring Annexure no. C.A.-1 thereof
which is a final order dated 27.4.2018 passed by
this Court in a petition of co-accused Pankaj
Kumar Verma filed u/s 482 Cr.P.C. dismissing
such petition on merits giving liberty to that
petitioner to seek bail before the appropriate
court of law. She has also submitted that the
same charge-sheet which is impugned herein has
been assailed and this Court after considering
the arguments of rival parties dismissed such
11 All. Nitesh Kumar Verma Vs. State of U.P. & Anr.
251
petition, therefore, in the present petition such
fact should have been indicated to follow the
principles of fairness. As per Ms. Singh if any
person does not approach the court with clean
hands no benevolence should be shown by the
Hon'ble Courts. Therefore, the instant petition
may be dismissed on the aforesaid ground alone.

15. So far as the ground of the competence
of an authority conducting investigation and
filing charge-sheet is concerned she has firstly
drawn attention of this court towards the dictum
of Apex Court in re: R.A.H. Siguran v.
Shankara Gowda alias Shankara reported in
(2017) 16 SCC 126. In the aforesaid case the
same question has been dealt by the Apex Court
as indicated in para 2 thereof which is being
reproduced herein below :

"2. The question for consideration is
whether the High Court was justified in
quashing the proceedings against Respondent
No.1 on the ground that investigating Officer
who conducted the investigation was not
authorized to do so under the provisions of
Immoral Traffic (Prevention) Act, 1956 (the
Act)."

16. In the aforesaid judgment the Apex
Court while considering the dictum of its own
court in re: H.N. Rishbud and Another vs. State
of Delhi reported in 1955 Cr.L.J. 526 has held
in para 13 that the High Court should have not
quashed the proceedings merely on the ground
that investigation was not conducted by the
competent authority. Para 13 thereof reads as
under :

"13. In View of the above, we are
satisfied that the High Court was not justified in
quashing the proceedings merely on the ground
that the investigation was not valid. It is not
necessary for this Court to go to the question
raised by leaned counsel for the appellants that
there was no infirmity in the Investigation."

17. The Hon'ble Apex Court in re: H.N.
Rishbud and another (supra) vide para 9 and 10
has dealt the issue of competence and was of the
opinion that the investigation should have been
conducted by the authorized officer but it does
not
necessarily
follow
that
an
invalid
investigation nullifies the cognizance or trial
based thereon. Further, such defect, if any may
be brought into the notice of learned trial court
at the very inception or at a sufficiently early
stage so that the appropriate order could be
passed by the learned court-below but if the trial
has proceeded and it reaches near to conclusion,
on the basis of investigation being conducted by
incompetent authority, the proceedings may not
vitiate unless the person concerned suffers from
manifest injustice on account of incompetence.
Relevant portion of para 9 and 10 reads as under
:

9.The question then requires to be
considered whether and to what extent the trial
which follows such investigation is vitiated.
Now, trial follows cognizance and cognizance is
preceded by investigation. This is undoubtedly
the base scheme of the Code in respect of
cognizable cases. But it does not necessarily
follow that an invalid investigation nullifies the
cognizance or trial based thereon. Here we are
not concerned with the effect of the breach of a
mandatory provision regulating the competence
or procedure of the Court as regards cognizance
or trial. It is only with reference to such a
breach that the question as to whether it
constitutes an illegality vitiating the proceedings
or a mere irregularity arises.

A defect or illegality in investigation,
however serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial. No doubt a police report
which results from an investigation is provided
in Section 190 Cr. P. C. as the material on
which cognizance is taken. But it cannot be
maintained that a valid and legal police report
is the foundation of the jurisdiction of the Court
252 INDIAN LAW REPORTS ALLAHABAD SERIES
to take cognizance. Section 190 Cr. P. C. is one
out of a group of sections under the heading
"Conditions
requisite
for
initiation
of
proceedings". The language of this section is in
marked contrast with that of the other sections
of the group under the same heading, i.e.,
Sections 193 and 195 to 199.

These latter sections regulate the
competence of the Court and bar its jurisdiction
in certain cases excepting in compliance
therewith. But Section 190 does not. While no
doubt, in one sense, Clauses (a),(b) and (2) of
Section 190(1) are conditions requisite for
taking of cognizance, it is not possible to say
that cognizance on an invalid police report is
prohibited and therefore a nullity. Such an
invalid report may still fall either under Clause
(a) or (b) of Section 190(1), (whether is the one
or the other we need not pause to consider) and
in any case cognizance so taken is only in the
nature of error in a proceeding antecedent to the
trial. To such a situation Section 537 Cr. P. C.
which is in the following terms is attached :

"Subject to the provisions herein
before contained, no finding, sentence or order
passed by a Court of competent jurisdiction
shall be reversed or altered on appeal or
revision on account of any error, omission or
irregularity in the complaint, summons, warrant,
charge, proclamation, order, Judgment or other
proceedings before or during trial or in any
enquiry or other proceedings under the Code,
unless such error, omission or irregularity, has
in act occasioned a failure of justice.

If, therefore, cognizance is in fact
taken, on a police report vitiated by the breach
of
a
mandatory
provision
relating
to
investigation, there can be no doubt that the
result of the trial which follows it cannot be set
aside unless the illegality in the investigation
can be shown to have brought about a
miscarriage of justice. That an illegality
committed in the course of investigation does not
affect the competence and the jurisdiction of the
Court for trial is well settled as appears from
the cases in - 'Prabhu v. Emperor', AIR 1944 PC
73 (C) and-Lumbhardar Zutshi v. The King', AIR
1950 PC 26 (D)

These no doubt relate to the illegality
of arrest in the course of investigation while we
are concerned in the present cases with the
illegality with reference to the machinery for the
collection of the evidence. This distinction may
have a bearing on the question of prejudice or
miscarriage of justice, but both the cases clearly
show that invalidity of the investigation has no
relation to the competence of the Court. We are,
therefore, clrarly, also, of the opinion that where
the cognizance of the case has in fact been taken
and the case has proceeded to termination, the
invalidity of the precedent Investigation does not
vitiate the result, unless miscarriage of justice
has been caused thereby.

10. It does not follow, however, that
the invalidity of the investigation is to be
completely ignored by the Court during trial.
When the breach of such a mandatory provision
is brought to the knowledge of the Court at a
sufficiently early stage, the Court, while not
declining cognizance, will have to take the
necessary steps to get the illegality cured and
the defect rectified, by ordering such reinvestigation as the circumstances of an
individual case may call for.

Such a course is not altogether outside
the contemplation of the scheme of the Code as
appears from section 202 under which a
Magistrate taking cognizance on a complaint
can order investigation by the police. Nor can it
be said that the adoption of such a course is
outside the scope of the inherent powers of the
Special Judge, who for purposes of procedure at
the trial is virtually in the position of a
Magistrate trying a warrant case. When the
attention of the Court is called to such an
illegality at a very early stage it would not be
fair to the accused not to obviate the prejudice
that may have been caused thereby, by
appropriate orders, at that stage but to leave
him to the ultimate remedy of waiting till the
11 All. Nitesh Kumar Verma Vs. State of U.P. & Anr.
253
conclusion of the trial and of discharging the
somewhat difficult burden under section 537 Cr
P. C. of making out that such an error has in
fact occasioned a failure of justice.

It is relevant in this context to observe
that even if the trial had proceeded to conclusion
and the accused had to make out that there was in
fact a failure of justice as the result of such an
error, explanation to section 537 Cr. P. C.
indicates that the fact of the objection having been
raised at an early stage of the proceeding is a
pertinent factor. To ignore the breach in such a
situation when brought to the notice of the Court
would be virtually to make a dead letter of the
peremptory provision which has been enacted on
grounds of public policy for the benefit of such an
accused. It is true that the peremptory provision
itself allows an officer of a lower rank to make the
investigation if permitted by the Magistrate. But
this is not any indication by the Legislature that an
investigation by an officer of a lower rank without
such permission cannot be said to cause prejudice.
When a Magistrate a approached for granting
such permission he is expected to satisfy himself
that there are good and sufficient reasons for
authorizing an officer of a lower rank to conduct
the investigation. The granting of such permission
is not to be treated by a Magistrate as a mere
matter of routine but it is an exercise of his judicial
discretion having regard to the policy underlying
it.

In our opinion, therefore, when such a
breach is brought to the notice of the Court at an
early stage of the trial the Court will have to
consider the nature and extent of the violation and
pass appropriate orders for such re-investigation
as may be called for, wholly or partly, and by such
officer as it considers appropriate with reference
to the requirements of section 5-A of the Act. It is
in the light of the above considerations that the
validity or otherwise of the objection as to the
violation of section 5(4) of the Act has to be
decided and the course to be adopted in these
proceedings, determined.

Emphasis Added

18. The Apex Court while considering
H.N. Rishbud and another (supra) in re: M/s
Fertico Marketing and Investment Pvt. Ltd.
and
Ors.
etc.
vs.
Central
Bureau
of
Investigation and another reported in 2020
SCC Online SC 395 has held, that the
cognizance and trial cannot be set aside unless
the illegality in the investigation can be shown
to have brought about mis-carriage of justice.

19. Therefore, in view of the above she has
submitted that since the further investigation
which was conducted by an officer who was not
competent as per notification issued on
15.9.1997 even then such investigation and
charge-sheet may not be declared as nullity in
the eyes of law inasmuch as such investigation
was completed after recording the statement of
relevant witnesses and charge-sheet was filed
accordingly. Not only the above the learned
court-below has taken cognizance on 24.3.2018
and trial is going on since then, therefore, this
petition may be dismissed.

20. Learned AGA has also submitted on
the basis of instructions that initially the
investigation was conducted by the SubInspector
but
further
investigation
was
conducted by the Head Constable (Promotional
Pay Scale) and on the basis of such investigation
charge-sheet was filed and the cognizance has
been taken on 24.3.2018 and the trial is in
progress.

21. Having heard learned counsel for the
parties and having perused the material available
on record, at the very outset this Court shows his
displeasure regarding the conduct of the present
petitioner by not coming fairly apprising the
Court that the petition of co-accused namely,
Pankaj Kumar Verma challenging the same
charge-sheet has already been dismissed on
merits. However, learned counsel for the present
petitioner has submitted that the legal grounds to
challenge the impugned charge-sheet in both the
254 INDIAN LAW REPORTS ALLAHABAD SERIES
petitions are different, therefore, such fact may
not be treated as concealment.

22. It has been noted that no interim order
has been granted by this Court in favour of the
petitioner. However, vide order dated 3.9.2021
this much has been provided that till the next
date of listing, the trial court before passing any
order in the case pending before it, shall have
due regard to the fact that the matter is subjudice before this Court.

23. So far as the argument of the
competence is concerned, I am in full agreement
with the decisions so cited by the learned
counsel for the petitioner as well as Ms.
Priyanka
Singh
to
the
extent
that
the
investigation should be carried out by the
authorized officer if such authority has been
vested by the competent authority. But at the
same time I am also in agreement with the view
of Hon'ble Apex Court in re: M/s Fertico
Marketing and Investment Pvt. Ltd (supra),
R.A.H. Siguran (supra) and H.N. Rishbud
(supra) that the cognizance and trial cannot be
set aside unless the illegality in the investigation
can be shown to have brought about miscarriage
of justice. Further, the illegality may have a
bearing on the question of prejudice or
miscarriage of justice but the invalidity of
investigation has no relevance to the competence
of the court.

24. The material available on record
clearly indicates that the victim had alleged the
specific allegation against the present petitioner
as well as his co-accused namely, Pankaj Kumar
Verma while recording her statement u/s 161
and 164 Cr.P.C. that both have outraged her
modesty and attempted to rape by torning her
clothes, pushing her sensitive body parts etc. As
a matter of fact both the accused have
committed such act to tarnish the modesty of the
victim. Further, the police officer has recorded
statement of independent witnesses as well as
other witnesses whose statements were not
recorded earlier. Further, on the basis of such
statements and the statement earlier recorded u/s
161 and 164 Cr.P.C. he filed chargesheet u/s 376
and 511 IPC.

25. To me, on the basis of aforesaid
material at least a chargesheet u/s 376 and 511
IPC should have been filed earlier and if such
material was not sufficient to file chargesheet
under such section, the accused person might
very well raise objection before the learned
court-below at the various stages available under
the law. It is needless to say that while framing
the charges the opportunity is provided to the
accused person and after considering the
objection of the accused person the charges are
famed. Even the accused person may file
discharge application before the appropriate
learned court below but on the basis of
allegations, statements of family members,
independent persons and statement u/s 161 and
164 Cr.P.C. of the victim, I am afraid why
chargesheet was not filed earlier u/s 376 and 511
IPC. However, this observation may not create
any hindrance to the accused person opposing
against the charge of section 376 and 511 IPC
and learned court-below would be at liberty to
frame charges against the accused person
independently without being influenced from
these findings.

26. Therefore, in view of the facts and the
case law cited herein above, I do not find any
infirmity or illegality in the chargesheet dated
10.3.2018 and the cognizance order dated
24.3.2018 passed by the learned court-below.

27. Hence, the present petition is dismissed
being devoid of merits.

28. However, it is needless to say that the
petitioner may ventilate his grievances or
prejudice or miscarriage of justice on account of
impugned chargesheet by filing appropriate
11 All. Dinesh Kumar Yadav Vs. State of U.P. & Ors.
255
application at the various stages available under
the law, if he is so advised, but the invalidity of
the investigation, if any, has no relevance to the
competence of the court concerned. The
question so formulated in this case has been
answered accordingly.

29. No order as to costs.
----------
(2021)11ILR A255
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

U/S 482/378/407 No. 4406 of 2021

Dinesh Kumar Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Gaurav Gupta

Counsel for the Opposite Parties:
G.A.

FIR by the complainant who borrowed money
from Petitioner but instead of refunding lodged
FIR to implicate-IO did not took on record the
evidence of video and photographs which
shows that money given to the servant of the
complainant-Petitioner
filed
an
application
before the Magistrate for direction to the
investigating officer to take his (accused)
evidence on record-rejected-no direction can
be issued to the I.O. on apprehension of unfair
practice.

Petition dismissed. (E-9)

List of Cases cited:

1.Sakiri Vasu Vs St. of U.P. reported in (2008) 2 SCC 409,

2. Vinubhai Haribhai Malaviya & ors. Vs St. of Guj. &
anr. reported in (2019) 17 SCC 1
3. Neeharika Infrastructure Pvt. Ltd. Vs St. of Mah. &
ors. reported in AIR 2021 SC 1918

4. King Emperor Vs Khwaja Nazir Ahmad reported in
AIR 1945 PC 18

5. Union of India Vs Prakash P. Hinduja, reported in
(2003) 6 SCC 195

6. St. of Orissa & ors. Vs Ujjal Kumr Burdhan reported
in (2012) 4 SCC 547

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(1) Heard the learned counsel for the
petitioner and Shri S.P. Tiwari, who appears for
the State respondents.

(2) It is the case of the petitioner that he is
an accused in F.I.R. dated 10.04.2021 where the
complainant Chandra Shekhar had borrowed
Rs.20 lacs in the form of Recurring Deposit
from the petitioner for the purpose of investment
in real estate. The load had also been admitted
by him. The complainant instead of refunding
the amount has falsely implicated the petitioner.

(3) The petitioner filed a cross F.I.R.

(4) The complainant had approached this
Court in a petition No.4300 of 2021 which was
dismissed by this Court on 11.02.2021 refusing
to interfere in the F.I.R.

(5)

The
petitioner approached
the
Investigating Officer annexing all evidence with
regard to Video and Photographs taken on
29.07.2019 saying that money had been given to
the servant of the complainant. The Investigating
Officer did not take the same on record.

(6) It has been argued that in Sakiri Vasu
Vs. State of U.P. reported in (2008) 2 SCC
409, and Vinubhai Haribhai Malaviya and
Others Vs. State of Gujarat and Another
reported in (2019) 17 SCC 1. The Supreme