Ram Sanehi and Others vs State of U.P. and Another

Vinod Prasad, J.—Heard learned Counsel for the applicants at great length and learned A.G.A.

The first information report was registered against the applicants Ram Sanehi, Rajendra Singh and Durvesh as Case Crime No. 79 of 2007, under Sections 342, 171 (g), I.P.C. and Section 3 (1) (x) of S.C./ S.T. Act at P. S. Chaubia, District Etawah on 12.7.2007 at 11.05 a.m. (Annexure-1) lodged by Hammir Singh Gautam.

To cut short the controversy, I do not go into the allegations levelled in the first information report as that is not relevant and germane for deciding the present application. The offences were investigated by the police who found that no offence has been committed by the applicants and therefore, the Investigating Officer submitted a final report on 1.9.2007 vide Annexure-3 to this application being final report No. 36 of 2007.

On the said final report notice was issued to the informant Hammir Singh Gautam who lodged the protest petition vide Annexure-4. Looking to the protest petition and the material contained in the case diary, Judicial Magistrate IInd, Etawah in the relevant case Hammir Singh Gautam v. Ram Sanehi and Ors. vide his order dated 28.3.2008, rejected the final report and directed for further investigation u/s 173 (8), Cr. P.C. Hence this application u/s 482, Cr. P.C. has been preferred by the applicants who are accused in the first information report and in favour of whom final report was submitted with the prayer to quash the order for further investigation dated 28.3.2008.

At the very outset the question cropped up for consideration is whether the applicants have any right to maintain this application u/s 482, Cr. P.C. or not?

Sri Arvind Kumar Srivastava, learned Counsel for the applicants argued that once the final report was accepted and there was an order favourable to the applicants any further investigation will jeopardise applicants liberty, as the Investigating Officer gets the right to apprehend them in the aforesaid crime number. Learned Counsel for the applicants has also contended that there is reasonable apprehension that the liberty of the applicants can be snatched away and therefore, they have invoked the inherent powers of this Court u/s 482, Cr. P.C.

The above anxiety shown by the learned Counsel for the applicants is not without any basis. But the question which follows for consideration is whether during investigation stage can the accused maintain the application u/s 482, Cr. P.C. or not?

This aspect of the matter no longer remains res integra and has been considered time and again. As of now there is nothing against the applicants. They have got no cause of action to maintain an application u/s 482, Cr. P.C. as no proceedings against them is pending in any Court of law. So far as the question to secure the ends of justice is concerned, Magistrate has only directed for further investigation which does not jeopardise justice. It will be improper if the investigation is nipped into the bud at the stage when the Magistrate has ordered for further investigation after looking into the material contained in the case diary. There is no abuse of the process of any Court involved in this case. In such a view this application at the behest of the applicants is not maintainable u/s 482, Cr. P.C. as it does not fall in any of the three categories mentioned u/s 482, Cr. P.C.

Now coming to the apprehension which has been showed by the learned Counsel for the applicants regarding his arrest and for that the applicants have got the remedy by filing the writ petition under Article 226 of the Constitution of India for infringement of their fundamental rights.

Learned Counsel for the applicants, though with tongue-in-cheek, made a submission that the writ petition will not be entertained as the Court may observe that a petition u/s 482, Cr. P.C. is maintainable. Such an apprehension of learned Counsel for the applicants is wholly unfounded and the same is not acceptable at all. The writ petition is always maintainable if there is a imminent danger of the infringement of the fundamental rights as provided to the citizens under Constitution of India and while filing the writ petition seeking remedy for quashing of the F.I.R. the applicants can also pray that order for further investigation passed by the learned Magistrate which according to him is illegal be also set aside.

With aforesaid observation, this application is dismissed with liberty to the applicants to seek remedy in the proper forum.