- (1.) A set of uterine brothers-Suresh, Krishna and Kalyan along with Hardwari and Hardev have prayed for quashing of charge sheet of crime number 264A of 2004, under Sections 147, 148, 149,324, 504, 506, 323, 307 IPC, Police Station Islam Nagar, District Badaun, which has been registered as criminal case number 1501 of 2004 State versus Suresh and others pending before Judicial Magistrate, Bisauli District Badaun, by invoking inherent power under Section 482 Cr. P.C. by this Court. They have also prayed for stay of further proceedings of the aforesaid case during the pendency of the above noted application in this Court.
(2.) The factual background of the case are that a FIR was lodged by Charan Singh at police station Islam Nagar district Badaun on 28-5 2004 against the present applicants under Sections 147, 323, 324, 504, 506 IPC in respect of an incident alleged to have taken place on 28-5-2004 at 1 p.m. with the allegations that the accused persons the present applicants, armed with Lathi and country made pistols firstly abused the informant filthily and then belaboured him with lathi and Dandas and accused Kalyan shot him near the waist. Rameshwar, Ram Sewak and many other witnessed the incident. The accused escaped threatening the family members of the informant. The police of PS Islam Nagar started investigation and recorded the statement of the informant and other witnesses who all supported the prosecution version. The informant was medically examined at 11 p.m. at P.H.C. Islam Nagar on the day of the incident itself and was found to have sustained gun shot injury and blunt object injury. His x-ray report dated 9-7-04 indicated that three metallic shadows were imbedded inside his body on left side back cum scapula. The said injury was found to be grievous in nature. After concluding the investigation the police submitted a charge sheet against the accused applicants on 13-6-04 under Sections 147, 148, 149, 324, 323, 504, 506 IPC. It is important to note that the said charge sheet had been submitted when the supplementary report and x-ray report was not available with the investigating officer. Subsequently the aforesaid two documents were made available to the investigating officer and therefore incumbent investigating officer added Section 307 IPC in the offences vide his charge sheet dated 14-7-04. After the said date the trial Court took cognizance of the offences on 5-11-04, as is clear from annexure No. 11 to the affidavit appended along with this application. The case is fixed for committal before Judicial Magistrate, Bisauli. At this stage the present criminal Misc. Application has been filed by the applicants for the relief mentioned herein before.
(3.) I have heard Sri Ram Babu Sharma advocate on behalf of applicants and learned AGA in opposition. Sri Sharma raised only one contention on merits of the matter. He submitted that further investigation can be carried out by the investigating officer only after seeking permission from the Court in case the charge sheet has been submitted and the Court has taken cognizance of the offence. The counsel contended that further investigation as well as the charge sheet submitted subsequently, by the police under Section 307 IPC is bad in law. He contended that there is no power with the police to make further investigation. He submitted that under Section 173 (8) Cr. P.C. the word used is "evidence". This, word according to the counsel, means "evidence" as is mentioned under Section 3 of the Indian Evidence Act 1872. He contended that "Evidence" under Section 173 (8) means evidence recorded before the Court and unless such an evidence comes forth, the police does not have the power to make further investigation. He added that since, in the present case, the trial has not started as yet therefore further investigation conducted by the police is bad in law and consequently subsequent charge sheet deserves to be quashed. The learned AGA contrarily submitted that Section 173 (8) relates with investigation and does not apply to trial and therefore the definition clause of Evidence Act will apply at all. Indian Evidence Act deals with evidences which are admissible or inadmissible and what is evidence and what is not and how the evidence has to be led at the trial and what will be the manner of taking evidence during the trial etc. He contended that Indian Evidence Act does not have any application during investigation and therefore this application is merit less and deserves to be dismissed.;