# Ramesh Yadav v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1482
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** Application U/S 482 No. 4022 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-yadav-v-state-of-u-p-ors-48436
- **Pages:** 19

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 482 - Cognizance
order and order committing case to Court of
Session
challenged-chargesheet
filed
on
relevant material and evidences-sufficient as per
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1483
prosecution -FSL report not filed initially with
chargesheet-filed later on-present case relates
to grave offence of brutal murder-procedural
lapse or technical error in preparation of charge
sheet -not causing any miscarriage of justice
and are curable and can be regularised under
law-proceedings cannot be quashed.

Petition dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,856 of 65,355. This is a partial read: ask again with offset=39856 for what follows._

1482 INDIAN LAW REPORTS ALLAHABAD SERIES
Antil vs. Central Bureau of Investigation
& Another, (2021) 10 SCC 773.

13. In Satender Kumar Antil (supra),
the Hon'ble Apex Court has issued
guidelines to trial courts and High Courts to
keep them in mind while considering the
bail applications. A copy of the aforesaid
judgment was also ordered to be circulated
to the Registrars of different High Courts to
be further circulated to the trial courts so
that necessary bail matters do not come up
before Hon'ble Apex Court. Relevant
portion of Satender Kumar Antil (supra) is
quoted as under:-

"5. The trial courts and the High
Courts will keep in mind the aforesaid
guidelines
while
considering
bail
applications. The caveat which has been
put by the learned ASG is that where the
accused have not cooperated in the
investigation non appeared before the
investigating
officers,
nor
answered
summons when the courts feels that judicial
custody of the accused is necessary for the
completion of the trial, where further
investigation including a possible recovery
is needed, the aforesaid approach cannot
give them benefit, something we agree with.

10. A copy of this order be
circulated to the Registrars of the different
High Courts to be further circulated to the
trial courts so that the necessary bail
matters do not come up to this Court."

14. During the course of arguments,
Advocates complained that Districts Courts
do not follow dictum of Satender Kumar
Antil (supra) unless specifically directed
by the High Court. This is a sorry state of
affair. The law laid down by the Hon'ble
Apex Court in Satender Kumar Antil
(supra) is law of land and is binding upon
all courts in India.

15. Hence, there is no need to issue a
direction to the trial court concerned to
decide the bail application applying the
legal proposition laid down by the Hon'ble
Apex Court in the reported case Satender
Kumar Antil (supra).

16. However, it would be appropriate
that a copy of this order be sent to the
Registrar General of Allahabad High Court,
who if required may issue circular to all the
courts in the State of Uttar Pradesh under
subordination of High Court of Judicature
at Allahabad to follow the law laid down by
the Hon'ble Apex Court in Satender Kumar
Antil (supra).

17. This Application U/s 482 Cr.P.C.
is disposed of with the observation that
applicants are permitted to file fresh
petition before the appropriate forcum.
----------
(2022)05ILR A1482
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.05.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 4022 of 2021

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

Counsel for the Applicant:
Anupam Mehrotra, Anil Kumar Yadav

Counsel for the Opposite Parties:
G.A., Akash Prasad, Amitav Singh

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482 - Cognizance
order and order committing case to Court of
Session
challenged-chargesheet
filed
on
relevant material and evidences-sufficient as per
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1483
prosecution -FSL report not filed initially with
chargesheet-filed later on-present case relates
to grave offence of brutal murder-procedural
lapse or technical error in preparation of charge
sheet -not causing any miscarriage of justice
and are curable and can be regularised under
law-proceedings cannot be quashed.

Petition dismissed. (E-9)

List of Cases cited:

1. R.R. Chari Vs The St. of U.P., AIR (38) 1951
SC 207,

2. Narayandas Bhagwandas Madhavdas VsThe
St. of W. B., AIR 1959 SC 1118,

3. Raghubans Dubey Vs St. of Bihar, AIR 1967
SC 1167

4. Darshan Singh Ram Kishan Vs The St. of
Mah., 1971 SCC (Cri) 628

5. Mowu Vs The Superintendent, Special Jail,
Nowgong, Assam & ors., 1972 SCC (Cri) 184

6. St. of W.B. Vs Manmal Bhutoria & ors., (1977)
3 SCC 440

7. Tula Ram & ors. Vs Kishore Singh, (1977) 4
SCC 459.

8. Raj Kishore Prasad Vs St. of Bihar & anr.,
(1996) 4 SCC 495.

9. Satya Narain Musadi & ors. Vs St. of Bihar,
(1980) 3 SCC 152

10. Divine Retreat Centre Vs St. of Kerala & ors,
AIR 2008 SC 1614

11. V. K. Sasikala Vs St. Represented by
Superintendent of Police, (2012) 9 SCC 771

12. Parminder Kaur Vs St. of U.P. & anr., (2010)
1 SCC 322

13. Karan Singh Vs St. of Har. & anr., AIR 2013
SC 2348

14. St. of Guj.Vs Afroz Mohammed Hasanfatta,
(2019) 20 SCC 539
15. Bhushan Kumar & anr. Vs St. (NCT of Delhi)
& anr., (2012) 5 SCC 424.

16. Central Bureau of Investigation Vs R.S. Pai &
anr., (2002) 5 SCC 82

17. U.O.I. Vs Prakash P. Hinduja & anr., (2003) 6
SCC 195

18. St. of Mah. Vs Sharadchandra Vinayak
Dongre & ors., (1995) 1 SCC 42

19. Central Bureau of Investigation (CBI) Vs R.S.
Pai & ors. , (2002) 5 SCC 82

20. Dhanaj Singh alias Shera & ors. Vs St. of
Pun., (2004) 3 SCC 654

21. Mutha Associates & ors. Vs St. of Mah. &
ors., (2013) 14 SCC 304

22. Amanullah & anr. Vs St. of Bihar & ors.,
(2016) 6 SCC 699

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

1. Heard Sri Anupam Mehrotra,
learned counsel for the applicant and Sri
Anurag Verma, learned AGA-I for the State
as well as Sri H.G.S. Parihar, learned
Senior Advocate, assisted by Sri Akash
Prasad and Sri Amitav Singh, learned
counsel
for
opposite
party
no.6/
complainant.

2. This petition/application under
Section
482 Cr.P.C. has
been
filed
challenging the orders of cognizance and
commitment of the case to the Court of
Session dated 10.01.2020 (Annexures No.1
&
2);
police
report/
charge
sheet
no.01/2020 dated 25.12.2019 (Annexure
No.3) and further proceedings thereto. As
an interim prayer, further proceedings of
Sessions Trial No.11 of 2020, order of
cognizance as well as commitment order
dated 10.01.2020 and the trial of the
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
present case have been prayed to be stayed
during pendency of the present petition.

3. Sri Anupam Mehrotra has assailed
the aforesaid orders saying that the
impugned police report/charge sheet no.01
of 2020 dated 25.12.2019 (Annexure No.3)
was filed on the basis of incomplete
investigation in Case Crime No.366 of
2019 lodged at Police Station Harchandpur,
Raebareli (under Sections 147, 148, 149,
323, 302, 201, 120-B & 216 IPC), wherein
the applicant and fifteen more accused
persons have been implicated, therefore,
such police report may not be termed as
police report strictly in terms of Section
173 Cr.P.C. He has also assailed the order
dated 10.1.2020 whereby the learned Chief
Judicial Magistrate, Raebareli has taken
cognizance of the charge sheet committing
the case for trial to the Court of Sessions
Judge without ascertaining and verifying
the fact as to whether the police report/
charge sheet has been properly filed or not.
As per Sri Mehrotra, since the police
report/charge sheet has been filed on the
basis of incomplete investigation and such
fact is clear from the charge sheet itself,
therefore, learned Chief Judicial Magistrate
instead of taking cognizance of said charge
sheet and committing the case for trial, he
should have ordered either for further
investigation
or
should
wait
till
investigation completes and all relevant
material is placed before the court.

4. Brief facts to consider the prayers
of the present applicant are that one FIR
was lodged by opposite party no.6, which
has been registered as Crime No.366 of
2019, originally under Sections 302 & 201
IPC and was subsequently converted under
Sections 147, 148, 149, 323, 302, 201, 120B & 216 IPC, Police Station Harchandpur,
Raebareli against Suresh Yadav, the owner
of Somu Dhaba and the unidentified staff
members of Somu Dhaba. The alleged
incident occurred on 9.10.2019 at 22:00
hours at Somu Dhaba and in the FIR in
question, it has been alleged that Aditya
Pratap Singh alias Ravi, son of Pradeep
Kumar
Singh,
the
complainant
(the
opposite party no.6 herein) was at the
house of his 'bua', (the sister of Ravi's
father,
Pradeep
Kumar
Singh,
the
complainant/opposite party no 6 herein) at
Jankipuram, Kanpur Road, P.S. Kotwali
Sadar, Raebareli in the night of 9.10.2019
when at around 10:00 PM, Ravi on being
called by three persons (Manish Singh,
Saurabh Singh and Ajay Singh), went to
meet them on a motorcycle (No. UP 33 N
7162). That night, when Ravi did not return
to the house of his bua, his bua tried the
whole night to contact Ravi on his mobile
phone but could not contact him. On the
next day, at 7:00 AM, the call of Ravi's bua
on Ravi's mobile phone was answered by
the S.H.O., Police Station Harchandpur,
Raebareli, who told Ravi's bua that the
person, the call on whose mobile phone is
being answered, his dead body has been
found near a godown near Garhi Khas (at
Raebareli) and the police has taken the
dead body to the District Hospital,
Raebareli. On being informed by Raj
Kumari Singh about what the S.H.O, told
her, Pradeep Kumar Singh (the father of
Ravi/the complainant/the opposite party no
6 herein) reached the District Hospital,
Raebareli where he found his son lying
dead. Thereupon, Pradeep Kumar Singh
(the complainant/the opposite party no 6
herein) called Ajay and Manish (supra) to
enquire about the death, upon which
Pradeep Kumar Singh was told that the
previous night, Ravi, along with Manish
Singh, Saurabh Singh and Ajay Singh
mentioned above, went to the Somu Dhaba
for dinner where, in a fracas, Ravi was
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1485
beaten up by Suresh Yadav (the owner of
Somu Dhaba/the applicant's cousin) and the
staff members of Somu Dhaba with
bamboo stick, poles and iron stick ("lathi,
dandey and sariya"). In this fracas, as
apprehended by Pradeep Kumar Singh (the
complainant/the
opposite
party
no.6
herein), Ravi was killed and his dead body
might have been thrown near the godown
near Garhi Khas to make the murder appear
as an accident. Further, the complainant/the
opposite
party
no
6
herein
also
apprehended that the CCTV Footages of
Somu Dhaba of the intervening night of
October 9 and 10, 2019 from 10:00 PM to
01:00 AM might have been deleted so as to
erase the evidence of murder.

5. As per Sri Mehrotra, for the
aforesaid
incident
one
local
leader-
Member of Legislative Council, U.P. from
Raebareli (for short "MLC"), namely, Sri
Dinesh Pratap Singh wrote a letter dated
12.10.2019 to the Chief Minister of U.P.
alleging that death of Aditya Pratap Singh
alias Ravi is murder at Somu Dhaba and
the accused persons are guilty of this
murder. It has been further alleged in the
said letter that the victim succumbed to the
injuries caused by the heated tools used for
cooking food. Sri Mehrotra has further
submitted that on the aforesaid letter dated
12.10.2019, the Chief Minister of the State
directed his Special Secretary to do the
needful exercise with promptness and
effective action be taken to punish the
guilty persons. On the direction of the
Chief Minister, the Special Secretary wrote
a letter to the Additional Chief Secretary,
Home, enclosing therewith the letter of
MLC for doing the needful exercise.
Therefore, as per Sri Mehrotra, the entire
exercise has been carried out by the police
at the behest of local MLC and the Chief
Minister.

6. Sri Mehrotra has further submitted
that since the Additional Chief Secretary,
Home, was taking personal interest in the
matter, therefore, the investigation was
hurriedly concluded and charge sheet was
filed on 25.12.2019. The aforesaid charge
sheet was based on incomplete investigation
inasmuch
as
during
investigation
on
14.11.2019,
three
hard-disks
and
two
adopters of CCTV footage were sent by the
police to the Forensic Science Laboratory
(FSL) and FSL report was not enclosed with
the charge sheet. Sri Mehrotra has drawn
attention of this Court towards the last page
of the charge sheet to show that the
Investigating
Officer
has
categorically
indicated that despite the couple of reminders
being sent to obtain FSL report, the same has
not been received for the reason that no such
examination could take place. It has been
further indicated that as soon as such FSL
report is received, the same shall be produced
before the learned court. However, it has been
requested in the said charge sheet that on the
basis of material available on record, the
evidences collected and the statements
recorded during investigation, the accused
persons may be punished. He has further
submitted that despite the fact that charge
sheet has already been filed on 25.12.2019,
even then the supplementary statements
(Mazeed Bayaan) have been recorded by the
Investigating Officer of certain persons on
8.1.2020, which is not permissible in the eyes
of law inasmuch as there cannot be any
further investigation when the original
investigation
is
incomplete.
However,
ignoring the aforesaid legal binding, the
Chief Judicial Magistrate, Raebareli took
cognizance of the charge sheet on 10.1.2020
and committed the issue to the Court of
Session.

7. Sri Mehrotra has drawn attention of
this
Court
towards
the
order dated
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
13.9.2021 (Annexure No.13) whereby the
court of Additional Sessions Judge-I,
Raebareli, the trial court, directed the
State/prosecution to apprise that whether
the investigation has completed or not. On
the
basis
of
aforesaid
order
dated
13.9.2021, Sri Mehrotra has submitted that
it is
evident that so called police
report/charge sheet was filed on the basis of
incomplete investigation, therefore, the
proceedings of trial court are futile as it
cannot take cognizance of the offence
unless the case has been committed to it by
a Magistrate under Section 193 Cr.P.C. For
the
convenience,
relevant
portion
of
Section 193 Cr.P.C. is being reproduced
herein below:-

"193. Cognizance of offences by
Courts of Session. Except as otherwise
expressly provided by this Code or by any
other law for the time being in force, no
Court of Session shall take cognizance of
any offence as a Court of original
jurisdiction unless the case has been
committed to it by a Magistrate under this
Code."

8. Sri Mehrotra has submitted that
since the impugned charge sheet as well as
cognisance order are nullity in the eyes of
law, therefore, those may be quashed. He
has further submitted that since the charge
sheet and cognizance order are not
sustainable in the eyes of law, therefore,
further trial proceedings in the case in
question may be stayed till conclusion of
proper investigation as per law. Sri
Mehrotra has submitted that the Chief
Judicial Magistrate has overlooked the
fundamental features of taking cognizance
within the meaning of Section 193 Cr.P.C.
These well settled features are; (1) for
"taking cognizance" no formal action is
prescribed, it is taken when a Magistrate
first takes judicial notice of an offence i.e.,
when the Magistrate applies mind for the
purpose of proceeding further on a
complaint or on a police report or upon
information of a person other than a police
officer, as the case may be ("judicial
notice" inherently means due application of
mind); and (2) "Cognizance" means taking
cognizance of offence and not of the
offenders i.e., the due application of mind
by the Magistrate is to be on how much is
the commission of an alleged offence made
out by the police report ('charge sheet') for
the purpose of having a triable case.
However, in the present case, as per Sri
Mehrotra, the Chief Judicial Magistrate did
not take cognizance/applied his mind to the
alleged offence, as no conclusion on the
commission
of
alleged
offence
was
possible without the FSL report and
without the completion of investigation. In
support of his aforesaid submission, he has
placed reliance upon the dictums of the
Hon'ble Apex Court in re; R.R. Chari v.
The State of Uttar Pradesh, AIR (38)
1951 SC 207, Narayandas Bhagwandas
Madhavdas v. The State of West Bengal,
AIR 1959 SC 1118, Raghubans Dubey v.
State of Bihar, AIR 1967 SC 1167,
Darshan Singh Ram Kishan v. The State
of Maharashtra, 1971 SCC (Cri) 628,
Mowu v. The Superintendent, Special
Jail, Nowgong, Assam and others, 1972
SCC (Cri) 184, State of West Bengal v.
Manmal Bhutoria and Others, (1977) 3
SCC 440 and Tula Ram and Others v.
Kishore Singh, (1977) 4 SCC 459. He has
referred para-9 of the dictum of of the Apex
Court in re; R.R. Chari (supra). Relevant
extract of para-9 of R.R. Chari (supra) is
being reproduced herein below:-

"(9) ....What is taking cognizance
has not been defined in the Cri.P.C. & I
have no desire to attempt to define it. It
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1487
seems to me clear however that before it
can be said that any Mag. has taken
cognizance of any offence u/s. 190(1)(a)
Cri.P.C., he must not only have applied his
mind to the contents of the petn but he must
have done so for the purpose of proceeding,
in a particular way as indicated in the
subsequent provisions of this Chap.,
proceeding u/s. 200 & thereafter sending it
for inquiry & report u/s. 202....."

9. In support of his argument that in
absence of the completion of investigation,
cognizance order of the Chief Judicial
Magistrate is a nullity, pursuant to which
the trial is impossible and could not
commence, Sri Mehrotra has cited the
dictum of the Apex Court in re; Raj
Kishore Prasad v. State of Bihar and
Another, (1996) 4 SCC 495.

10. Referring the dictum of the Apex
Court in re; Satya Narain Musadi and
Others v. State of Bihar, (1980) 3 SCC
152, Sri Mehrotra has submitted that the
Hon'ble Apex Court has clarified about the
police report in paras 9 & 10 of the
aforesaid judgment observing that Section
173 (2) (1) Cr.P.C. provides that on
completion of investigation the police
officer investigating into the cognizable
offence shall submit a report in the form
prescribed by the State Government.
Statutory requirement of the report under
Section 173 (2) Cr.P.C. would be complied
with
if
the
various
details
therein
prescribed are included in the report. On
the strength of the aforesaid dictum, Sri
Mehrotra tried to explain that unless and
until the entire material is collected by the
investigating agency, charge sheet should
have not been filed and if charge sheet is
filed
on
the
basis
of
incomplete
investigation,
the
learned
court
of
Magistrate should not take cognizance
thereof.

11. He has further submitted that the
Apex Court in re; Divine Retreat Centre
v. State of Kerala & Ors, AIR 2008 SC
1614, V.K. Sasikala v. State Represented
by Superintendent of Police, (2012) 9
SCC 771, Parminder Kaur v. State of
Uttar Pradesh and Another, (2010) 1
SCC 322 and Karan Singh v. State of
Haryana & Anr., AIR 2013 SC 2348, has
observed that the investigation is the duty
of the police in which the courts do not
ordinarily interfere. An exception to this is
the
abuse
of
police
power
in
an
investigation, against which interference by
the High Court lies. Application of mind by
the Magistrate under Section 173 (2)
Cr.P.C. and the plenary powers of the High
Court have been held to be the adequate
safeguards for ensuring fair investigation.

12. Per Contra, Sri Anurag Verma,
learned AGA
has
raised
preliminary
objection regarding maintainability of the
instant petition/ application in view of the
recent pronouncements of the Apex Court
in
re;
State
of
Gujarat
v. Afroz
Mohammed Hasanfatta, (2019) 20 SCC
539, wherein it has been held as follows:-

"16. It is well settled that at the
stage of issuing process, the Magistrate is
mainly concerned with the allegations
made in the complaint or the evidence led
in support of the same and the Magistrate is
only to be satisfied that there are sufficient
grounds for proceeding against the accused.
It is fairly well settled that when issuing
summons,
the
Magistrate
need
not
explicitly
state
the
reasons
for
his
satisfaction that there are sufficient grounds
for proceeding against the accused.....
1488 INDIAN LAW REPORTS ALLAHABAD SERIES

22. In summoning the accused, it
is not necessary for the Magistrate to
examine the merits and demerits of the case
and whether the materials collected is
adequate for supporting the conviction. The
court is not required to evaluate the
evidence and its merits. The standard to be
adopted for summoning the accused under
Section 204 CrPC is not the same at the
time of framing the charge. For issuance of
summons under Section 204 CrPC, the
expression used is "there is sufficient
ground for proceeding..."; whereas for
framing the charges, the expression used in
Sections 240 and 246 IPC is "there is
ground for presuming that the accused has
committed an offence...". At the stage of
taking cognizance of the offence based
upon a police report and for issuance of
summons under Section 204 CrPC, detailed
enquiry regarding the merits and demerits
of the case is not required. The fact that
after investigation of the case, the police
has filed charge-sheet along with the
materials thereon may be considered as
sufficient
ground
for
proceeding
for
issuance of summons under Section 204
CrPC.

23. Insofar as taking cognizance
based on the police report is concerned, the
Magistrate has the advantage of the chargesheet, statement of witnesses and other
evidence collected by the police during the
investigation.
Investigating
officer/SHO
collects the necessary evidence during the
investigation conducted in compliance with
the provisions of the Criminal Procedure
Code and in accordance with the rules of
investigation. Evidence and materials so
collected are sifted at the level of the
investigating officer and thereafter, chargesheet was filed. In appropriate cases, opinion
of the Public Prosecutor is also obtained
before filing the charge-sheet. The court thus
has the advantage of the police report along
with the materials placed before it by the
police. Under Section 190(1)(b) CrPC, where
the Magistrate has taken cognizance of an
offence upon a police report and the
Magistrate is satisfied that there is sufficient
ground for proceeding, the Magistrate directs
issuance of process. In case of taking
cognizance of an offence based upon the
police report, the Magistrate is not required to
record reasons for issuing the process. In
cases instituted on a police report, the
Magistrate is only required to pass an order
issuing summons to the accused. Such an
order of issuing summons to the accused is
based upon subject to satisfaction of the
Magistrate considering the police report and
other documents and satisfying himself that
there is sufficient ground for proceeding
against the accused. In a case based upon the
police report, at the stage of issuing the
summons to the accused, the Magistrate is
not required to record any reason. In case, if
the charge-sheet is barred by law or where
there is lack of jurisdiction or when the
charge-sheet is rejected or not taken on file,
then the Magistrate is required to record his
reasons for rejection of the charge-sheet and
for not taking it on file.

24.
In
the
present
case,
cognizance of the offence has been taken
by taking into consideration the chargesheet filed by the police for the offence
under Sections 420, 465, 467, 468, 471,
477-A and 120-B IPC, the order for
issuance of process without explicitly
recording reasons for its satisfaction for
issue of process does not suffer from any
illegality."

13. Therefore, Sri Verma has
submitted that there subsists no valid
ground
for
quashing
the
criminal
proceedings against the accused-applicant
and the present petition deserves to be
outrightly dismissed.
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1489

14. Sri Verma has further submitted
that by way of catena of
judicial
pronouncements, the Apex Court has held
that at the time of cognizance, the
Magistrate is not required to write a
detailed order. So as to strengthen the
aforesaid argument, he has placed reliance
upon the dictum of the Apex Court in re;
Bhushan Kumar and Another v. State
(NCT of Delhi) and Another, (2012) 5
SCC 424. Sri Verma has vehemently
denied the contention of Sri Mehrotra that
the investigation was not carried out in a
fair and impartial manner. As per him, the
investigation was carried out absolutely in
a fair and impartial manner, without any
political intervention and pursuant to the
revelation of credible and cogent evidence
regarding complicity of the accused person,
a charge sheet was prepared strictly in
consonance with the provisions of Cr.P.C.
and was forwarded to the competent court.
Sri Verma has further submitted that all
reliable and credible evidences have been
collected and statements of all witnesses
including the injured witnesses have been
recorded. Further, at the time of submission
of charge sheet only the report from FSL
regarding electronic evidence was awaited
which will not make the charge sheet
against the applicant and other co-accused
defective in any manner whatsoever.

15. Sri Verma has however informed
the Court that such FSL report regarding
electronic evidence gathered during the
course of investigation has been received
from the Forensic Science Laboratory and
the same was duly endorsed in the case
diary on 2.11.2021. Such FSL report, which
is dated 24.9.2021, has been filed along
with supplementary counter affidavit filed
on 25.11.2021. Sri Verma has filed
statements of all the witnesses including
the injured persons by filing counter
affidavit
and
supplementary
counter
affidavit.

16. Sri Verma has submitted that there
is no specific bar to the effect that the
additional documents cannot be produced
subsequently. If the Investigating Officer
obtains reliable document, he may produce
the same later on. Not only the above, if the
Investigating Officer has himself indicated
in the charge sheet that he shall be filing
the FSL report when the same is received to
him, he can file such report before the
learned court concerned and in the present
case such FSL report has already been
filed. So as to strengthen his aforesaid
argument, Sri Verma has cited the dictum
of the Apex Court in re; Central Bureau of
Investigation v. R.S. Pai and Another,
(2002) 5 SCC 82, wherein in para-7, it has
been held as under:-

"7. From the aforesaid subsections, it is apparent that normally, the
investigating officer is required to produce
all the relevant documents at the time of
submitting the charge-sheet. At the same
time, as there is no specific prohibition, it
cannot
be
held
that
the
additional
documents
cannot
be
produced
subsequently. If some mistake is committed
in not producing the relevant documents at
the time of submitting the report or the
charge-sheet, it is always open to the
investigating officer to produce the same
with the permission of the court. In our
view, considering the preliminary stage of
prosecution and the context in which the
police officer is required to forward to the
Magistrate all the documents or the
relevant extracts thereof on which the
prosecution proposes to rely, the word
"shall" used in sub-section (5) cannot be
interpreted as mandatory, but as directory.
Normally, the documents gathered during
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
the
investigation
upon
which
the
prosecution wants to rely are required to be
forwarded to the Magistrate, but if there is
some omission, it would not mean that the
remaining documents cannot be produced
subsequently. Analogous provision under
Section 173(4) of the Code of Criminal
Procedure, 1898 was considered by this
Court in Narayan Rao v. State of A.P. [AIR
1957 SC 737 : 1958 SCR 283 : 1957 Cri LJ
1320] (SCR at p. 293) and it was held that
the word "shall" occurring in sub-section
(4) of Section 173 and sub-section (3) of
Section 207-A is not mandatory but only
directory. Further, the scheme of subsection (8) of Section 173 also makes it
abundantly clear that even after the
charge-sheet
is
submitted,
further
investigation,
if
called
for,
is
not
precluded. If further investigation is not
precluded then there is no question of not
permitting the prosecution to produce
additional documents which were gathered
prior to or subsequent to the investigation.
In such cases, there cannot be any
prejudice to the accused. Hence, the
impugned order passed by the Special
Court cannot be sustained."

17. Sri Verma has further submitted
that endeavour of the applicant/ petitioner
to portray the illegality in the investigation
and the consequent cognizance is entirely
misplaced and fallacious. Citing the dictum
of the Apex Court in re: Union of India v.
Prakash P. Hinduja and Another, (2003)
6 SCC 195, he has submitted that assuming
though not conceding that there is any error
in preparation of the charge sheet in the
instant case, the same is no legitimate
ground for interference under inherent
power of this Court either with the
cognizance or with the charge sheet.
Relevant extract of para 21 of the aforesaid
case is as under:-

"21. ...The Court after referring to
Parbhu v. Emperor [AIR 1944 PC 73 : 46
Cri LJ 119] and Lumbhardar Zutshi v. R.
[AIR 1950 PC 26 : (1950) 51 Cri LJ 644]
held that if cognizance is in fact taken on a
police report initiated 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 and that an
illegality committed in the course of
investigation
does
not
affect
the
competence and the jurisdiction of the
court for trial. This being the legal position,
even assuming for the sake of argument
that CBI committed an error or irregularity
in submitting the charge-sheet without the
approval of CVC, the cognizance taken by
the learned Special Judge on the basis of
such a charge-sheet could not be set aside
nor could further proceedings in pursuance
thereof be quashed. The High Court has
clearly erred in setting aside the order of
the
learned
Special
Judge
taking
cognizance of the offence and in quashing
further proceedings of the case."

18. Therefore, Sri Verma has
submitted that the present petition may be
dismissed.

19. Sri H.G.S. Parihar, learned Senior
Advocate, assisted by Sri Akash Prasad,
learned counsel for opposite party no.6, has
also adopted the arguments of Sri Anurag
Verma, learned AGA. Sri Parihar has
further submitted that in the present case
after recording the statements of the
complainant as well as other witnesses and
collecting the material, charge sheet has
been filed and the same may not be
declared invalid for the reason that at the
time of filing the charge sheet, FSL report
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1491
was not filed. However, he has submitted
on the basis of instructions that said FSL
report has been filed. As per him, the trial is
going on, therefore, no interference in the
trial may be required and the present
petition may be dismissed.

20. Heard learned counsel for the
parties and perused the material available
on record.

21. It has been gathered from the
material available on record that the
prosecution
has
collected
material
evidences during the course of the
investigation including video footage and
clips so as to corroborate the prosecution
story. The vehicle used in the assault was
also recovered and after proper physical
examination of such vehicle, it was
allegedly found that this was the vehicle
which was used by the assailants/accused
persons to kill the victim. Statements of
relevant and material witnesses and eye
witnesses
have
been
recorded.
The
statements of aforesaid witnesses including
eye witnesses vis-a-vis FSL report of the
vehicle in question have been enclosed
alongwith
the
counter
affidavit
and
supplementary counter affidavit filed by the
State.

22. Law is settled on the point that
there is no specific bar to collect the
evidence and file the same after filing the
charge-sheet. If the material/evidence is
credible and relevant for taking the trial
court on any certain conclusion, the same
may be accepted by the Magistrate/ trial
court. The Hon'ble Apex Court in re; State
of
Maharashtra
v.
Sharadchandra
Vinayak Dongre and Others, (1995) 1
SCC 42, has held that Magistrate can take
cognizance of the offence if he is satisfied
that the material placed by the prosecution
is sufficient for taking cognizance. He is
not debarred from doing so merely because
police has filed an application after
submission of the charge sheet seeking
permission to file supplementary charge
sheet.

23. The Hon'ble Apex Court in re;
Central Bureau of Investigation (CBI) v.
R.S. Pai and Ors, (2002) 5 SCC 82, has
held that the Investigating Officer is
required to produce all the relevant
documents at the time of submitting the
charge sheet. At the same time, as there is
no specific prohibition, it cannot be held
that the additional documents cannot be
produced subsequently. If some mistake is
committed in not producing the relevant
documents at the time of submitting the
report or charge sheet, it is always open to
the Investigating Officer to produce the
same with the permission of the court. Sri
Verma has submitted that the aforesaid
exercise is also permitted in view of
Section 173 (8) Cr.P.C.

24. The Hon'ble Apex Court in re;
Dhanaj Singh alias Shera and Others v.
State of Punjab, (2004) 3 SCC 654, has
observed in paras 5 to 8 as under:-

"5. In the case of a defective
investigation
the
court
has
to
be
circumspect in evaluating the evidence. But
it would not be right in acquitting an
accused person solely on account of the
defect; to do so would tantamount to
playing into the hands of the investigating
officer if the investigation is designedly
defective. (See Karnel Singh v. State of
M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri)
977]

6. In Paras Yadav v. State of
Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri)
104] it was held that if the lapse or
1492 INDIAN LAW REPORTS ALLAHABAD SERIES
omission is committed by the investigating
agency or because of negligence the
prosecution evidence is required to be
examined dehors such omissions to find out
whether the said evidence is reliable or not,
the contaminated conduct of officials
should not stand in the way of evaluating
the evidence by the courts; otherwise the
designed mischief would be perpetuated
and justice would be denied to the
complainant party.

7. As was observed in Ram Bihari
Yadav v. State of Bihar [(1998) 4 SCC 517 :
1998 SCC (Cri) 1085] if primacy is given
to such designed or negligent investigation,
to the omission or lapses by perfunctory
investigation or omissions, the faith and
confidence of the people would be shaken
not only in the law-enforcing agency but
also in the administration of justice. The
view was again reiterated in Amar Singh v.
Balwinder Singh [(2003) 2 SCC 518 : 2003
SCC (Cri) 641] . As noted in Amar Singh
case [(2003) 2 SCC 518 : 2003 SCC (Cri)
641] it would have been certainly better if
the firearms were sent to the Forensic Test
Laboratory for comparison. But the report
of the ballistic expert would be in the
nature of an expert opinion without any
conclusiveness attached to it. When the
direct testimony of the eyewitnesses
corroborated by the medical evidence fully
establishes the prosecution version, failure
or omission or negligence on the part of the
IO cannot affect the credibility of the
prosecution version.

8. The stand of the appellants
relates essentially to acceptability of
evidence. Even if the investigation is
defective, in view of the legal principles set
out above, that pales into insignificance
when ocular testimony is found credible
and
cogent.
Further
effect
of
nonexamination of weapons of assault or the
pellets, etc. in the background of defective
investigation has been considered in Amar
Singh case [(2003) 2 SCC 518 : 2003 SCC
(Cri) 641]. In the case at hand, no crack in
the evidence of the vital witnesses can be
noticed."

25. So far as arguments of Sri
Mehrotra that charge sheet has been filed
under the influence of the local leader,
therefore, the same is an outcome of
malafide, the Hon'ble Apex Court in re;
Mutha Associates and Others v. State of
Maharashtra and Others, (2013) 14 SCC
304, has observed in paras 44 to 50 as
under:-

"44. That the allegations of mala
fides would require a high degree of proof
to
rebut
the
presumption
that
administrative action has been taken bona
fide was laid down as one of the principles
governing burden of proof of allegations
of mala fides levelled by an aggrieved
party. The Court in Ajit Kumar Nag v.
Indian Oil Corpn. Ltd. [(2005) 7 SCC 764
: 2005 SCC (L&S) 1020] observed thus:
(SCC p. 790, para 56)

"56. ... It is well settled that the
burden of proving mala fide is on the
person making the allegations and the
burden is ''very heavy'. (Vide E.P. Royappa
v. State of T.N. [(1974) 4 SCC 3 : 1974
SCC
(L&S)
165].
There
is
every
presumption in favour of the administration
that the power has been exercised bona fide
and in good faith. It is to be remembered
that the allegations of mala fide are often
more easily made than made out and the
very
seriousness
of
such
allegations
demands proof of a high degree of
credibility. As Krishna Iyer, J. stated in
Gulam Mustafa v. State of Maharashtra
[(1976) 1 SCC 800] (SCC p. 802, para 2):
''It (mala fide) is the last refuge of a losing
litigant.'"
5 All. Ramesh Yadav Vs. State of U.P. & Ors.
1493

45. In State of M.P. v. Nandlal
Jaiswal [(1986) 4 SCC 566] this Court laid
emphasis on the need for furnishing full
particulars of allegations suggesting mala
fides. The use of words such as "mala
fides", "corruption" and "corrupt practice"
was held to be insufficient to necessitate an
enquiry into such allegations. The Court
observed: (SCC p. 611, para 39)

"39. Before we part with this case
we must express our strong disapproval of
the observations made by B.M. Lal, J. in
paras 1, 9, 17, 18, 19 and 34 of his
concurring opinion. The learned Judge
made sweeping observations attributing
mala fides, corruption and underhand
dealing to the State Government. These
observations are in our opinion not at all
justified by the record. In the first place it is
difficult to appreciate how any such
observation could be made by the learned
Judge without any foundation for the same
being laid in the pleadings. It is true that in
the writ petitions the petitioners used words
such as ''mala fide', ''corruption' and
''corrupt practice' but the use of such words
is not enough. What is necessary is to give
full particulars of such allegations and to
set out the material facts specifying the
particular person against whom such
allegations are made so that he may have
an opportunity of controverting such
allegations. The requirement of law is not
satisfied insofar as the pleadings in the
present case are concerned and in the
absence of necessary particulars and
material facts, we fail to see how the
learned Judge could come to a finding that
the State Government was guilty of factual
mala fides, corruption and underhand
dealing."

46. To the same effect is the
decision of this Court in Swaran Lata v.
Union of India [(1979) 3 SCC 165 : 1979
SCC (L&S) 237] the Court held that in the
absence of particulars, the Court would be
justified
in
refusing
to
conduct
an
investigation into the allegations of mala
fides.

47. In A. Peeriakaruppan v.
Sobha Joseph [(1971) 1 SCC 38] this Court
held that even when the Court examining
the validity of an action may find a
circumstance to be disturbing it cannot
uphold the plea of mala fides on ground of
mere probabilities. A note of caution was
similarly sounded by this Court in E.P.
Royappa v. State of T.N.