Rakesh Singh vs State of U.P. and Another

Raj Mani Chauhan, J.—Sri A.P. Mishra, Advocate files Vakalatnama on behalf of opposite party No. 2 which is taken on record.

Heard learned Counsel for the petitioner and learned A.G.A for the State as well as learned Counsel for the opposite party No. 2.

This petition u/s 482 of Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioner for quashing the order dated 06.08.2010 passed by the learned Additional Chief Judicial Magistrate-Ist, Sultanpur by which he has rejected the remand request made by the Investigating Officer and let the accused Subedar/opposite party No. 2 to go scot-free.

The submission of learned Counsel for the petitioner is that on the basis of written report of complainant (present petitioner) the police of Police Station Chanda, District Sultanpur registered a case under Sections 452, 323, 308 I.P.C. against the four accused for investigation. The Investigating Officer during investigation arrested one of the accused Subedar Singh and he produced the accused before the Magistrate concerned along with application for remand of the accused Subedar Singh under Sections 324, 325, 323 I.P.C on the basis of evidence collected by him which was allowed by the Magistrate. Accused thereafter moved an application for bail which was allowed by the learned Magistrate and he was ordered to be released on bail. Later on, on the basis of complaint of the complainant, Investigating Officer was changed. The second Investigating Officer on the basis of injury report of the injured as well as statements of the witnesses found that there was, prima facie, evidence in support of offence u/s 308 I.P.C. Consequently, accused Subedar Singh again arrested by the Investigating Officer and he was produced before the Magistrate concerned along with application for remand who refused the prayer of remand with the observation that the injury report of the injured as well as statements of witnesses recorded by the second Investigating Officer were the same as collected by the First Investigating Officer. There was no additional evidence on the case diary to show that the accused was guilty u/s 308 I.P.C. Learned Counsel submits that this observation of the learned Magistrate is illegal and without jurisdiction, therefore, the impugned order passed by the learned Magistrate is liable to be quashed.

Learned A.G.A. as well as learned Counsel for the opposite party No. 2 supported the order passed by the Magistrate.

Learned Counsel for the opposite party No. 2 argued that the second Investigating Officer did not collect any additional evidence. Learned Magistrate by the impugned order dated 06.08.2010 declined to remand the accused u/s 308 I.P.C. as the evidence collected by the Second Investigating Officer was same as collected by the First Investigating Officer. The State had filed revision against the order dated 06.08.2010 passed by the Magistrate refusing the remand of the accused which was dismissed on 01.09.2010 by the In-charge Sessions Judge, Sultanpur. Therefore, the impugned order is perfectly legal.

Considered the submissions of learned Counsel for the parties.

At this stage, it will not be proper to give any opinion as to whether offence on the basis of evidence collected by the Investigating Officer u/s 308 I.P.C. is made out against the accused or not. The case is already under investigation. Keeping in view of the facts and circumstances of the case, the petition is being disposed of finally with the observation that the Investigating Officer on the basis of evidence collected by him during investigation may file charge sheet for the offence in support of which he finds, prima facie, evidence without being guided by the order dated 06.08.2010 passed by the learned Additional Chief Judicial Magistrate-Ist Sultanpur.