Ahilya vs State of Uttar Pradesh

Ramesh Sinha, J—The present criminal revision has been filed against the judgment and order dated 10.6.2015 passed by the learned Sessions Judge, Ghaziabad taking cognizance of the offence and summoning the revisionist to face the trial under Sections 8/20/22 of N.D.P.S. Act in S.S.T. No. 89 of 2015, police station Sahibabad, District Ghaziabad along with the order dated 23.6.2015 passed by Additional Sessions Judge, 13th, Ghaziabad in which the said trial is pending.

The prosecution case in brief is that an FIR was lodged was lodged on 11.4.2015 at about 00.30 hours by S.I. Savez Khan against the five accused persons, namely, Rajesh son of Chandrabhanu, Munna @ Chand Prakash Shahi son of Kashi Nath Shahi, Ahilya wife of Narendra @ Gabbar, Beena wife of Nirmal, Gabbar @ Narendra son of Gupt Singh with respect to an incident taken place on 10.4.2015 at 18.15 P.M. when the informant along with other police personnel were checking the vehicles coming from Ghaziabad to New Delhi. When the vehicles were being checked at a barrier at 9.30 P.M, one Indigo Car No. DL 9C X 7993 which was coming from Mohan Nagar when was stopped by the police personnel, the persons sitting in it tried to flee away seeing the police personnel but was stopped by the police personnel after using necessary force, four persons were arrested by the police and one person had fled away from the place of occurrence taking benefit of darkness in the night.

On the interrogation of the said persons arrested, it was stated by them that they are engaged in the selling of opium and they were going to sell the same at Buradih at Delhi which was being purchased from Bihar. In the said vehicle the opium was loaded which was brought by the co-accused Gabbar @ Narendra Singh from Bihar at a low price. The fifth person who had fled away from the place of occurrence was co-accused Gabbar @ Narendra.

When the police personnel came to know about the contraband article from the said four accused persons, it in compliance of the provisions of Section 50 of N.D.P.S. Act, informed them about it and they stated that their search can be taken by the police personnel who prepared and signed the memo as required under the law. The four accused persons who were arrested, disclosed their names as Rajesh son of Chandrabhanu, Munna @ Chand Prakash Shahi son of Kashi Nath Shahi, Ahilya wife of Narendra @ Gabbar, Beena wife of Nirmal. The female co-accused were also searched by the woman constable and nothing was recovered from their physical possession except the clothes which they were wearing. From the back side of the vehicle, a white bag was recovered in the presence of police personnel and all of the accused informed that co-accused Gabbar @ Narendra used to bring the opium from Bihar to Ghaziabad and the accused persons used to carry it in the vehicle so that there would be no suspicion regarding his activities and accused used to sell the said contraband article at Delhi at a higher rate. The two bags which were recovered from the said vehicle were weighed and in one bag 7 Kg. opium and in other bag 14 Kg. opium was recovered and sample was taken from both the bags and were sealed.

The independent witnesses were also tried to be procured by the police but due to night the same could not be made available nor anybody was ready to come as witness, hence, the said accused were arrested by the raiding party and they were also informed about the directions of the Human Rights Commissions and also followed the Rules and Regulations and prepared the arrest memo as well as recovered article from them.

The police after investigation submitted charge sheet on 23.5.2015 under Sections 8/20/22 of N.D.P.S. Act against the four accused persons including the revisionist.

The Sessions Judge, Ghaziabad on 10.6.2015 took cognizance of the offence against the revisionist and three other accused persons mentioned in the charge sheet and summoned them for trial.

It appears from the order sheet of the trial court that on 10.6.2015 the case was transferred to the Court of Additional Sessions Judge, Court No. 13, Ghaziabad for disposal according to law by the Sessions Judge, Ghaziabad. Three of the accused persons mentioned in the charge sheet were already in jail but the revisionist is on bail during trial hence, on 23.6.2015 in continuation of the order dated 10.6.2015 passed by the trial court revisionist was summoned.

Heard Sri Daya Shanker Mishra, learned counsel for the revisionist, Sri R.K. Maurya, learned AGA for the State.

The pleadings have been exchanged between the parties.

It has been contended by the learned counsel for the revisionist that though the FIR was lodged against the five accused persons including the revisionist and the charge sheet has been submitted against them but the investigation of the case is still incomplete as no charge sheet has been submitted against the co-accused Gabbar @ Narendra, hence the order taking cognizance by the trial Court on the basis of the said charge sheet is bad in the eyes of law. He further submitted that as per the provisions of under Section 190(1)(b) of Cr.P.C., the cognizance is taken of an offence and not of an accused and in the instant case the investigation with respect to the co-accused Gabbar @ Narenda is still pending, hence the order taking cognizance and summoning the revisionist by the trial Court is against the provisions of law and passed without application of judicial mind in a most mechanical manner be set aside by this Court.

Learned counsel for the revisionist in support of his contention, has placed reliance upon a judgment of the Apex Court in the case of Rama Chaudhary Vs. State of Bihar, AIR 2009 SC 2308 : (2009) 5 JT 14 : (2009) 5 SCALE 366 : (2009) 6 SCC 346 : (2009) 5 SCR 482 : (2009) 4 UJ 1618 , Dharmendra Tripathi Vs. State of U.P., (1996) 20 ACR 801 & Bhartendu Pratap Singh Vs. State of U.P. and Another, (2011) 4 ADJ 466 .

He further argued that participation of the co-accused Gabbar @ Narendra in the present case has come into light in the confessional statements of co-accused persons, which is not admissible in evidence. He next argued that the co-accused Gabbar @ Narenda was not present at the date, time and place of the incident as he had left Lucknow on 8.4.2015 for Siwan at Bihar by train and reached there 9.4.2015 at 8.40 P.M. which is at a distance of about 390 Kms., hence by no means he can be present on 10.4.2015 at the place of occurrence from Siwan, a copy of the reservation of co-accused Gabbar @ Narendra has been annexed as Annexure-SA2 to the supplementary affidavit. He further pointed out that on 10.4.2015 the co-accused Gabbar @ Narendra had also appeared in a case under the NDPS Act being case No. 18 of 2014 before the Court of 3rd Additional Sessions Judge/Special Judge, Motihari (Bihar) along with other co-accused persons and had signed the order sheet of the said case, as is evident from Annexure-SA1 of the Supplementary affidavit. Thus, co-accused Gabbar @ Narendra has been falsely implicated in the present case.

Per contra, learned AGA has argued that the revisionist is the wife of co-accused Gabbar @ Narendra who is involved in several cases under the NDPS Act in various States. No doubt, the disclosure of the name of co-accused Gabbar @ Narendra has come into light in the confessional statement of revisionist and other three co-accused persons who were arrested by the police along with the contraband article, but the charge sheet has been submitted against the revisionist and three other co-accused persons, namely, Rajesh son of Chandrabhanu, Munna @ Chand Prakash Shahi son of Kashi Nath Shahi, Ahilya wife of Narendra @ Gabbar, Beena wife of Nirmal, and the learned Magistrate after after perusing the material collected during the course of investigation has taken cognizance and has summoned them for trial vide order dated 10.6.2015 and subsequently when the revisionist and other co-accused persons did not appear, the summons were again issued in continuation of the earlier order on 23.6.2015. He argued that the contention of the learned counsel for the revisionist that on the basis of an incomplete investigation charge sheet has been submitted against the revisionist, cognizance taken and summoning the revisionist and other co-accused persons is not permissible under law, is wholly unfounded as under Section 190(1)(b) of the Cr.P.C. the learned trial Court has rightly taken cognizance of the offence against the revisionist as prima-facie an offence was disclosed against her and three other co-accused persons mentioned in the charge sheet. So far as the investigation of with respect to co-accused Gabbar @ Narendra is concerned, the Investigating Officer after due investigation would submit police report in accordance with law but the trial of the revisionist and co-accused who have been charge sheeted cannot be held up on this ground. In support of his contention learned AGA has placed reliance upon a judgement of the Apex court in the case of Swill Ltd. Vs. Delhi reported in 2001 Law Suit (SC) 1051.

Considered the submissions advanced by the learned counsel for the parties and perused the record.

Admittedly, it appears from the charge sheet that investigation with respect to the revisionist and three co-accused persons, namely, Rajesh son of Chandrabhanu, Munna @ Chand Prakash Shahi son of Kashi Nath Shahi and Beena wife of Nirmal has been completed and police submitted charge sheet against the revisionist and other three accused before the competent court and the Sessions Judge vide order dated 10.6.2015 has taken cognizance after perusing the case diary, statement of the witnesses recorded under Sections 161 Cr.P.C., other material available on record found a prima facie case against the revisionist and three accused persons took cognizance of the offence and summoned them under Section 8/20/22 NDPS Act. The revisionist was on bail during trial, hence when she did not appear before the Court on 23.6.2015 in continuation of the earlier order dated 10.6.2015 summons were issued to her.

The FIR of the present case was lodged against the five accused persons and charge sheet has been submitted against the four accused persons including the revisionist and co-accused Gabbar @ Narendra who happens to be husband of the revisionist, his participation has come into light in the confessional statements of revisionist and co-accused persons. The contraband article which was recovered from the vehicle in which the revisionist and three other co-accused persons, namely, Rajesh son of Chandrabhanu, Munna @ Chand Prakash Shahi son of Kashi Nath Shahi and Beena wife of Nirmal were travelling were charge sheeted, they could not show any documents regarding the constructive possession of the contraband article which may authorize them to possess the same.

The learned counsel for the revisionist has tried to demonstrate before this Court that the husband of the revisionist, namely, Gabbar @ Narendra was not present at the place, date and time of the incident as he had left Lucknow on 8.4.2015 for Siwan at Bihar and had also appeared on 10.4.2015 in a case under the NDPS Act being case No. 18 of 2014 before the Court of 3rd Additional Sessions Judge/Special Judge, Motihari (Bihar), hence, he could not have been present at the place of occurrence and involved in the incident and investigation against him is still pending. Therefore, there appears to be incomplete investigation in the matter and the charge sheet which has been submitted against the revisionist and three co-accused persons was not legally justified and the cognizance taken by the trial court and summoning the revisionist does not appear to be sustainable in the eyes of law as the police report has been submitted against the revisionist under Section 173(2) Cr.P.C. along with three other co-accused persons before the competent court and the Sessions Judge after applying its mind and perusing the case diary and other relevant documents had directed the case to be registered against the revisionist and other co-accused and took cognizance of the offence and summoned them for facing trial for the offence in question. There appears to be no doubt regarding legal proposition that the cognizance is taken of an offence and of an accused but in the instant case the trial court after receiving police report under Section 173(2) CR.P.C. found that the revisionist and three other co-accused persons were named in the charge sheet and further while taking cognizance and summoning them had considered the case diary and other materials which were submitted before it, hence, cognizance which has been taken by the trial court under Section 190(1)(b) Cr.P.C. cannot be said to be illegal simply because because the investigation with respect to the co-accused Gabbar @ Narendra is still pending. It is always open for the police to carry out the further investigation under Section 173(8) Cr.P.C. or it is open for the trial Court to summon any of the accused in view of Section 319 Cr.P.C. if during the course of evidence at trial his participation comes into light with the other accused persons who are being tried by it. In this regard the judgment of Apex Court in the Case of Rabhubans Dubey Vs. State of Bihar reported in AIR 1967 SC 11678 is relevant for being reproduced, which is as under:

"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence"

Thus, the law laid down by the Apex Court in the case of Swil Ltd. Vs. State of Delhi (supra), the learned Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) Cr.P.C. even if the police report is to that effect that no offence is made out against the accused by ignoring conclusion arrived at by the Investigating Officer and independently applying his mind to facts emerging from investigation by taking into account statement of witnesses examined by the police.

The case laws which have been cited by the learned counsel for the revisionist in support of his argument are also distinguishable from the facts and circumstances of the present case. In the instant case the trial Court after submission of police report under Section 173(2) Cr.P.C. against the revisionist and three other co-accused persons who have been charge sheeted, has taken cognizance under Section 190(1)(b) Cr.P.C. and summoned the revisionist and co-accused for trial.

Thus, there appears to be no illegality, infirmity or jurisdictional error in the impugned order passed by the trial Court requiring any interference by this Court. The revision lacks merit and is liable to be dismissed. Hence, it is, accordingly, dismissed.