Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 648 OF 2018
(Arising out of SLP (Crl.) No.2082 of 2016)
OSAMA AZIZ AND ANR. …..Appellant(s)
:Versus:
STATE OF UTTAR PRADESH AND ORS. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal, by special leave, filed by the appellants in
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person, is against the judgment and orders dated 10
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January, 2013 and 19 March, 2013 passed by the High
Court of Judicature at Allahabad, Lucknow Bench, in Case
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U/S 482/378/407 No.60 of 2013. The first order dated 10
January, 2013 is obviously an interlocutory order but also
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rejecting reliefs (i) to (iv) claimed in the petition filed by the
appellants. The petition came to be finally disposed of by the
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High Court vide judgment and order dated 19 March, 2013.
Accordingly, both these orders have been assailed in the
present appeal. The copy of the petition filed before the High
Court has not been included in the appeal paper book.
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However, from the impugned order dated 10 January, 2013,
it is noticed that the first prayer in the petition filed before the
High Court was to direct the investigating agency to include
Section 307 of Indian Penal Code (“IPC”, for short) in the
chargesheet filed against three persons before the Trial Court
in Crime No.419 of 2010, P.S. Wazirganj, Lucknow. The
second prayer is to include other relevant sections of IPC or
other Acts against the accused in the aforementioned crime.
The third prayer is to frame proper charges against
Jameeruddin Siddiqui (exADJ). Fourth prayer is to take
cognizance against the Emergency Medical Officer of Adarsh
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Karavas on 24 June, 2010. The fifth prayer is to discover all
the accused on the basis of the clue given in paragraph 8 of
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the Counter Affidavit. The sixth prayer is to grant reasonable
time for completion of investigation and seventh prayer is to
pass any other or further orders in favour of the appellants. In
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the impugned order dated 19 March, 2013, the prayers
mentioned in the subject petition filed by the appellants before
the High Court have been reproduced as under:
“2. By means of the instant petition, the petitioners have
challenged the investigation pending in Case No. CB 447 of
2010, arising out of case crime no. 419 of 2010 (State Vs.
Airaz Siddiqui & Others), police station Wazirganj, Lucknow
investigated by the C.B. CID, Luckonw and has made
following prayer
“(i) It is prayed to include section 307 of IPC on the charge
sheet submitted in Crime No. 419 of 2010, police station
Wazirganj, Lucknow.
(ii) It is prayed to impose other relevant sections of IPC or
other Acts against accuseds in crime no. 419/2010, police
station Wazirganj, LKO that Lordship deems fit, just and
proper for assaulting in Judicial Custody even after Hon'ble
High Court Security Instructions.
(iii) It is prayed to frame proper charges against
Jameeruddin Siddiqui (exADJ).
(iv) It is prayed to take cognizance against the concerned
Emergency Medical Officer of Adarsh Karavas on
24/06/2010.
(v) It is prayed to regard para 8 of Counter Affidavit as a key
to discover all the accused.
(vi) It is prayed to grant reasonable time for the completion of
Investigation as Lordship deems, just, fit and proper.
(vii) It is prayed to pass any other order in favour of the
petitioners.”
As regards reliefs (i), (ii) and (iii), the same stood disposed
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of in terms of the impugned order dated 10 January, 2013,
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and rest of the reliefs were considered and answered by the
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High Court vide impugned order dated 19 March, 2013.
3. In substance, the reliefs claimed in the petition filed
before the High Court were in reference to the criminal case
registered against private respondents and other accused,
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being Crime No.419 of 2010. In the order dated 10 January,
2013, the High Court noted that the chargesheet was already
filed in respect of the said crime before the competent Court
against three accused for offences punishable under Sections
147, 323, 504 and 353 of IPC and the Court was informed by
the AGA that investigation against other accused was still
going on. It is in that context the High Court observed at the
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end of the impugned order dated 10 January, 2013 that so
far as reliefs (i), (ii) and (iii) are concerned, the appellants may
approach the Trial Court. This is one aspect to which our
attention has been drawn by appellant No.1, who has
appeared inperson. As regards this grievance of the
appellants, we are in agreement with the High Court that the
appellants are free to pursue their legal remedies before the
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Trial Court for inclusion of Section 307 of IPC in Crime No.419
of 2010. Needless to observe that even if chargesheet in
respect of the said offence has been filed, it is open to the Trial
Court at the appropriate stage to frame the charge for offence
under Section 307 of IPC if the material on record justifies
framing of such a charge, including to amend the charges and
also to proceed against other persons appearing to be guilty of
offence. None of the observations made by the High Court in
the impugned orders will be any impediment for the Trial
Court to do so. This must assuage the apprehension of the
appellants that even if there is evidence to indicate
commission of offence under Section 307, such a charge has
not been framed against the concerned accused. We leave that
question open to be considered by the Trial Court on its own
merits and in accordance with law.
4. As regards relief (iv), the High Court, in its impugned
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order dated 10 January, 2013 , has noted that the same
Crime No.419 of
pertained to some other case unconnected with
2010, arising from an independent act of commission and
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omission in the discharge of duty for which no criminal
proceeding is pending in the Court. As a result, the High Court
declined to issue any direction in respect of prayer clause (iv).
As regards prayer clause (v), the High Court observed that the
same will be considered after submission of the progress
report by the concerned Investigating Officer in respect of
Crime No.419 of 2010. Thus, the Court finally disposed of
reliefs (i) to (iv) with the observation that no further action is
needed in respect of the said reliefs.
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5. The matter was then taken up by the High Court on 19
March, 2013, for considering the remaining reliefs (v) to (vii).
The grievance made by the appellants before the High Court
has been considered in the following words:
“The petitioner has made only seven reliefs in his petition.
Since final order has already been passed with regard to the
abovementioned four reliefs, only relief no. 5 to 7 needs to be
considered. Admittedly police has filed charge sheet in this
case. So far as relief No. 5 is concerned, it relates to discover
the accused persons during investigation and if the police
has not submitted charge sheet against them, the petitioner
himself can adduce evidence before the trial court.
Thereafter the accused persons may be summoned in
exercise of the power under Section 319 Cr.P.C. Relief no. 6
has also become infructuous as by means of this prayer, the
petitioner prayed for relief to complete the investigation
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within a stipulated period, therefore, it has rendered
infructuous by submission of the charge sheet.
4. It is submitted by the petitioner that the investigation is
per se incorrect because as per the conclusions of the
investigation, there were so many persons, who committed
the offence but charge sheet has been filed only against
three accused persons under Section 147 IPC also. It is
further submitted that to constitute an offence under Section
147 IPC at least five persons should have been charge
sheeted. No other ground was pressed into service by the
petitioner in his argument.
5. Learned A.G.A. has submitted that in this case prayer has
been made to interfere in the investigation and to issue
certain directions to the Investigating Officer and these
prayers have rendered infructuous as police has already
submitted charge sheet.
6. It transpires from the perusal of the record that in this
case F.I.R. was lodged at case crime no. 419 of 2010 at
police station Wazirganj, district Lucknow with the allegation
that accused Airaz Ahmad Siddiqui, Advocate with the
intention to create his influence in the area had lodged a
false report under Section 147, 323, 336, 504 & 506 IPC,
police station Chowk, district Lucknow at case crime no. 24
of 2009 after taking the police under his pressure and in
collusion with police got a false charge sheet submitted in
court. Feeling aggrieved by the said charge sheet, the
petitioner moved a petition under Section 482 Cr.P.C. before
this Court, which was dismissed with the direction to the
court concerned to dispose of the bail application of the
petitioner in the light of Lal Kamlendra Pratap Singh Vs.
State of U.P. reported in [2009 (3) ADJ 322 (SC)]. When the
petitioner was present for his bail before the court
concerned, then the accused persons, namely, Airaz Ahmad
Siddiqui, Iraj Ahamad Siddiqui, his father Jamaruddin (Ex.
ADJ), Aamir Nakvi, Advocate, Pradeep, Advocate Saraan
Kahn, Advocate, Sahil, Advocate and a friend of Iraj Ahmad
Zuber and Tarik along with other persons entered into the
court room and started beating him with kick and fists and
Danda while the petitioner was in judicial custody. At that
time, Presiding Officer was present in Court. He made an
effort for his rescue. His mother made an effort for the
rescue of the petitioner then Iraz Ahmad also caused her
injuries. Thereafter the police force was called and the
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accused persons ran away from there and the petitioner was
sent for medical examination to District Jail, Lucknow. After
investigation, police submitted charge sheet only against
three accused persons and the petitioner was not satisfied
with the investigation. Result of the investigation was to the
effect that several persons took part in the incident but their
identity could not be ascertained, hence charge sheet was
filed against three accused persons.
Since the investigation has already been completed
and charge sheet has been filed, therefore, the submission of
the petitioner that the investigation is per se illegal because
charge sheet has been filed only against three persons under
Section 147 IPC, which could not have been filed against less
than five persons. But this Court is not satisfied with this
argument as the investigation has revealed that offence was
committed by several persons but the identity of other co
accused persons could not be ascertained, therefore, there
was no illegality in submission of charge sheet under Section
147 IPC. The offence was committed by an unlawful
assembly and identity of only three accused persons could
be ascertained, who were members of unlawful assembly,
therefore, submission of charge sheet including Section 147
IPC only against three accused persons cannot be said to be
illegal in any manner. But keeping in view the facts of the
case, the petitioner may raise his grievance before the court
concerned.
But keeping in view the manner in which, the offence
has committed by the Advocates, this Court considers it
necessary to issue certain directions because the offence in
this case was committed in a court room while Presiding
Officer was sitting and that too by Advocates, who are also
the part of the system. No one can be permitted to pollute
the pious stream of justice delivery system.
7. Hence, it is provided that if the petitioner raise his
grievance before the learned Magistrate concerned, the same
shall be considered and decided by the court below in
accordance with law as expeditiously as possible. This Court
is also conscious about the security of the petitioner, hence,
this Court considers it necessary to issue certain direction to
ensure the safety of the petitioner. Therefore, it is hereby
directed that the Senior Superintendent of Police, Lucknow
shall provide sufficient security to the petitioner for his
appearance before the court below on each date fixed from
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his residence to the court and thereafter from the court to
his residence so long as danger to his security persists. The
District Judge shall also supervise that the petitioner is
provided sufficient security to pursue the matter before the
court and shall also ensure that no hindrance, by any
person, is created in his right to move the court for getting
justice.
8. In view of the above, though the petition is hereby
dismissed but direction as indicated above are issued in the
interest of justice.
9. Ordered accordingly.”
We must clarify that we have reproduced the aforequoted
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portion from the impugned order dated 19 March, 2013 only
to highlight the relevant portion. We may not be understood to
have affirmed any observation therein or on the merits of the
controversy.
6. According to the appellants, the observation so made by
the High Court will come in their way in pursuing the criminal
case. We are not impressed by the said grievance inasmuch as
the High Court had itself made it clear that all aspects will
have to be considered by the Trial Court at the appropriate
stage. The High Court was cognizant of the fact that the
allegations against the persons involved in the commission of
crime were very serious. The High Court has then observed
that as chargesheet has been filed only against three persons,
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all contentions available to the appellants could be raised
before the Trial Court for being decided in accordance with
law.
We reiterate that the none of the observation made by the
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High Court will come in the way of the appellants in pursuing
the criminal cases and for taking the same to its logical end, in
accordance with law. The Trial Court shall consider every
aspect of the matter that will be brought to its notice by the
appellants, on its own merits, objectively.
Besides this, no other aspect is required to be considered
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by this Court even though in the prayer clause of the special
leave petition, the appellants have asked for reliefs much
beyond the lis that was before the High Court in Petition No.60
of 2013. Notably, in the prayer clause of the memo of special
leave petition, no relief has been claimed to assail the
impugned judgment and orders of the High Court as such.
What has been prayed is as follows:
“It is therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to:
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A. Direct an Agency other than the State to discover the extent
of assault of petitioners in Court room in Case Crime
No.419/2010 of P.S. Wazirganj, Lucknow, Uttar Pradesh.
B. Punish and penalize Respondent Nos.4 and 5 for polluting
the judiciary as Additional Government Advocate and
Central Government counsel after becoming accused of
unlawful assembly.
C. Judge the bails of Respondent Nos.5 and 6 in view of MB
6794 of 2011 and MB 5461 of 2011 as compared to the Bail
No.4320 of 2011 of Respondent No.4 from the High Court, in
Case Crime No.419/2010 of P.S. Wazirganj, Lucknow.
D. And pass such further order(s), as this Hon’ble Court may
deem fit and proper in the facts and circumstances of the
case.”
We may overlook this aspect as the appellants are pursuing
this appeal inperson.
Accordingly, we dispose of this appeal with the
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observations made hitherto. While parting with the case, we
may observe that if the trial of subject Crime No.419 of 2010
has still not commenced, all concerned must take necessary
steps in that behalf and ensure that the trial is concluded
expeditiously.
A copy of this order be brought to the notice of the Trial
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Court by the Public Prosecutor appearing before the Trial
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Court, within two weeks from the date of its receipt. It will also
be open to the appellants to produce a copy of this order
before the Trial Court, if so advised.
Ordered accordingly.
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.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
April 27, 2018.