Ravindra Singh - (1.) -Heard learned counsel for the applicant and learned A.G.A.
(2.) THIS application has been filed with a prayer to quash the order dated 23.11.2007, passed by A.C.J.M., Deoband, Saharanpur in Case No. 881 of 2007, arising out of charge-sheet submitted in Case Crime No. 153 of 2005, under Sections 147, 148, 149, 307, 323, 504 and 506, I.P.C., P.S. Deoband, District Saharanpur, whereby the application filed by the Investigating Officer for granting a permission for further investigation under Section 173 (8), Cr. P.C. has been rejected. It is contended by learned counsel for the applicant that in the present case the identity of the accused namely Jaipal Singh is disputed. One of the accused Jai Pal Singh son of Om Prakash is named in the F.I.R. who has been charge-sheeted as Jaipal son of Om Prakash, therefore, N.B.W. and process under Section 82, Cr. P.C. has been issued against him. After issuing the process under Section 82, Cr. P.C., (proclamation) against the accused Jaipal who could neither be arrested by the police nor he surrendered before the Court concerned, but the police of police station Deoband submitted the report to the Court of learned A.C.J.M., Deoband that the accused Jaipal Singh who has been charge-sheeted is having alias name Jagpal Singh son of Om Prakash, thereafter the applicant gave an application to S.S.P., Saharanpur for doing the further investigation under Section 173 (8), Cr. P.C. mentioning therein that his name is Jagpal son of Om Prakash, he is having no alias name but he is very well known to first informant Chander Singh who did not disclose the alias name of the applicant as Jaipal Singh to ascertain this fact, the further investigation may be done, thereafter the Investigating Officer of this case moved an application under Section 173 (8), Cr. P.C. in the Court of learned A.C.J.M., Deoband, District Saharanpur on 15.11.2007 to obtain the permission or further investigation, the same has been rejected by learned A.C.J.M., Deoband on 23.1.2007. The learned A.C.J.M., Deoband did not consider the issue of identity involved in the present case because first informant Chander Singh himself has filed an affidavit stating therein that the applicant Jagpal Singh was known to him personally, he was not involved in the commission of the alleged offence. But learned Addl. C.J.M., Deoband, has relied upon a police report submitted in the Court, mentioning therein that Jagpal Singh is alias name of Jaipal Singh. This report was submitted after submission of the charge-sheet, but till the submission of the charge-sheet, during investigation this fact has not come forward. Therefore, to ascertain the 'real accused' a further investigation is necessarily required. Therefore, the impugned order dated 23.11.2007 is illegal and liable to be set aside. In reply of the above contention, it is submitted by learned A.G.A. that there is no controversy in respect of accusation of the applicant but this controversy has been created deliberately on the basis of some other extraneous consideration. The learned Magistrate concerned has not committed any error in rejecting the such application, therefore, the present application may be dismissed.
(3.) CONSIDERING the facts, circumstances of the case, submissions made by learned counsel for the applicant learned A.G.A. and from the perusal of the record it appears that in the present case eight persons including Jai Pal son of Om Prakash are named in the F.I.R. and they have been charge-sheeted but Jai Pal son of Om Prakash has neither surrendered nor he was arrested by the police then the N.B.W. and process under Section 82, Cr. P.C. was issued. Subsequently the police has submitted the report in the Court of learned Magistrate concerned that Jagpal Singh is alias name of Jaipal Singh who has been charge-sheeted. It has been clarified by the Investigating Officer Naresh Kumar on 10.10.2007. It appears that subsequently the application was given by the applicant to S.S.P., Saharanpur for doing further investigation to ascertain his accusation and affidavit has also been filed by the first informant Chander Singh in favour of the applicant Jagpal Singh, thereafter the Investigating Officer moved an application in the Court of learned A.C.J.M., Deoband, Saharanpur for the purpose of further investigation under Section 173 (8), Cr. P.C. This controversy has been created after submission of the chargesheet so that accused who has been charge-sheeted may be escaped from a criminal liability because Jaipal Singh son of Om Prakash is named in the F.I.R., he has been charge-sheeted but subsequently it has been clarified by the police that the same person is named as Jaipal and Jagpal the parentage of both the names is same. The learned Magistrate concerned has not committed any error in passing the order dated 23.11.2007. However, considering the fact that the controversy has been created by the Investigating Officer himself at the instance of the applicant and affidavit has been filed by the first informant Chander Singh, after submission of the charge-sheet it is directed that the S.S.P., Saharanpur either himself or by some other senior officer of the police shall ascertain the identity of the accused Jai Pal son of Om Prakash and shall submit the report within one and half month from today in the Court of learned A.C.J.M., Deoband and shall arrest the real person who has been charge-sheeted, and for one and half month from today no coercive steps shall be taken against the applicant. In case the S.S.P. Saharanpur comes to the conclusion that after submission of the charge-sheet, the mischief has been done by the I.O., the S.S.P. shall initiate the appropriate proceedings against the I.O., who moved the application under Section 173 (8), Cr. P.C., in the Court of learned A.C.J.M., Deoband. With the above direction, this application is finally disposed of.;