JUDGMENT
Vinod Prasad, J.
1. The three siblings- Naushad Ali Siddiqui, Hazi Arif, Hazi Oshaf Ali, all sons of Ummed Ali along with Shahroz, Mohan Don @ Sri Rashid, Shabbir and Jainul are malefactors in the murder case of Nazim @ Kallo resident of Imambada Gali PS Rasoolpur, District Firozabad. The have approached this Court, invoking it’s inherent jurisdiction under Section 482 Cr.P.C., with the primary prayer to quash the charge sheet, cognizance order and summoning order dated 21.1.2006 (Annexure 7 and 8) passed by Chief Judicial Magistrate Firozabad, in case No. 167 of 2006 State of UP v. Naushad and Ors. under Sections 147/148/149/302/307 IPC relating to the murder of Nazim @ Kallo. The said case is pending before ACJM (I) Forozabad as case number 311 of 2005. The ancillary prayer is for stay of further proceeding of the aforesaid case pendent lite.
2. The facts of the case paragraphed are that Smt Saira Begum (informant) accompanied by her husband Nazim @ Kallo (deceased), Mushir, her sister Farida and daughter Gungun had gone for shopping to Agra from Firozabad on their motor cycle for the marriage of Rafat Begum, her sister-in-law (Nanad). While returning when they reached near Usani Chauraha, Raja Ka tal by pass road at 6 PM, a safari car overtook their motor cycle and stopped them. Motivated with the idea to settle the scores of old enemity, the present applicants, Naushad Ali Siddiqui, Hazi Arif, Hazi Ausad Ali, Shahroz, Mohan Don @ Rashid, Shabbir, Jainul armed with pistol and country made pistols, alighted from Safari car and on the instigation of Naushad Ali Siddiqui, all of them opened fire towards the informant, her husband and daughter hitting and injuring them as a result of which all of them fell down. On alarm being raised by the informant, her brother and sister nearby people and passers by collected there. The assailants made their escaped good towards district Firozabad, in the Safari car. The husband of the informant Nazim Ali @ Kallo lost his life on the spot. Saira Begum informant, got the FIR, annexure No. 1, scribed through Mohd. Sazid and lodged it at the police station Tundla district Firozabad as crime number 311 of 2005 under Sections 147/148/149/302/307 IPC on that day at 8.15 PM covering a distance of 12 kms. The police of PS Tundla started the investigation. Interregnum investigation, Hazi Ausaf Ali, accused filed an application to Th. Gauri Shankar Singh, National Secretary, Lok Dal, New Delhi and on the basis of the said letter, Th. Gauri Shankar Singh, aforesaid wrote a letter to Director General of Police, UP on 29.12.2005. On the basis of the aforesaid letter by Th. Gauri Shankar Singh, DIG Head Quarters, attached with office of Director General Of Police, Uttar Pradesh wrote a letter on 30.12.2005 to DIG, Agra range, Agra that according to the letter by Th. Gauri Shankar Singh, annexed with letter of accused Ausaf Ali, some innocent persons are being roped in the said crime number due to political pressure and therefore the case to be got investigated through an independent agency from another police station or from the police of another district vide Annexure No. 4. Meanwhile it seems that under the orders from DIG Agra dated 30.12.2005, the investigation was transferred to S.I.S on 4.1.2006 by Superintendent of Police, Firozabad and Sub Inspector Indresh Kumar Bhadauria was directed to conduct the investigation and expedite the same vide annexure No. 2 to the affidavit filed in support of this application DIG Agra range, Agra subsequently however, cancelled his first order and retransferred the investigation to District Mainpuri and ordered Senior Superintendent of Police Mainpuri to get the record of investigation from District Firozabad and get the investigation concluded with in fifteen days vide order dated 17.1.2006 (Annexure No. 4). In pursuance of the said order by DIG, Agra Superintendent of police Mainpuri, on 19.1.2006 transferred the investigation to B.C. Verma, Station Officer Police Station, Dannahar and directed him to collect all the papers and start the investigation forthwith and submit a report within a week vide annexure no, 5 to the affidavit. However, on the same day 19,1.2006, SI Indresh Kumar Bhadauria, of S.I.S. who was conducting the investigation, concluded it and finding a prima offence committed by the accused filed a charge sheet against them in court vide annexure No. 6 to the affidavit. On the basis of charge sheet submitted by S.I. Indresh Kumar Bhadauria, CJM, Firozabad took cognizance of offence on 21.1.2006, Annexure No. 9 is the copy of an undated application filed by two accused Hazi Ausaf Ali and Hazi Arif All addressed to Director General of Police U.P. for fresh investigation and they challenged the charge sheet. A perusal of order sheet, annexure No. 7 of the case indicates that CJM took cognizance on 19.1.2006 on the charge sheet and the same was sent to the copying section and NBW was issued against Arif Ausaf, accused as he was absconding and had not surrendered. 21.2.2006 was the date fixed in the case.
3. Though a supplementary affidavit the certified copy of the complete order sheet and the copy of application for discharge filed by the accused and the copy of the order passed rejecting the said application for discharge on 4.3.2006, has been filed. The certified copy indicates that the two applicants Hazi Ausaf Ali and Hazi Arif Ali filed an application for discharge on 17.2.2006 which was pending on the day (1.3.2006) when this application under Section 482 Cr.P.C. was filed in this Court. However the said discharge application stood rejected by the order dated 4.3.2006 passed by the ACJM (I), Firozabad.
4. I have heard Sri V.P. Srivastava advocate assisted by Alpana Diwedi advocate on behalf of the accused applicants, Sri Arvind Agarwal Advocate on behalf of informant Smt. Saira Begum respondent No. 2 and the learned AGA in opposition.
5. The only submission canvassed at the bar by Sri Srivastava was that the submission of charge sheet by SI Indresh Kumar Bahdauria was illegal as the DIG had transferred the investigation from him and he no longer was the investigating officer, consequently had no right to file the charge sheet. He contended that under Section 173 charge sheet can be filed only by the investigating officer and no body else. He further contended that under Sections 36/157 Cr.P.C., police officers superior in rank to the officer in charge of the police station may exercise the same power which officer in charge of police station may exercise and therefore he harangued that under Section 157 Cr.P.C. SI Indresh Bhaduria was not competent to file the charge sheet once the investigation was transferred from him by the order of the superior officer.
6. Learned AGA as well as Sri Arvind Agarwal advocate, contrarily, contended that before the order of transfer by DIG was communicated to SI Indresh Kumar Bhaduria he had already filed the charge sheet and the court had cognizance on the said charge sheet and thus the charge sheet can not be quashed merely on the basis that the SI Indresh Kumar Bhaduria had no power to investigate the case because of the above mentioned transfer order. They submitted that the present application is devoid of merit and deserves to be dismissed.
7. For judging the submissions canvassed at the bar, a glimpse of the scheme of the code of criminal procedure 1974 regarding power of police to investigate seems to indispensable. Under Section 154 Cr.P.C. the FIR of commission of a cognizable offence is registered which is required to be signed by the person giving it either orally or in writing. Under Sub-section (2) thereof, a copy of the same is to be given to the maker of the FIR free of cost. Sub-section (3) of Section 154 Cr.P.C. provides that if the FIR is not registered, as is provided under Sub-section 154(1) Cr.P.C., then the informant may send his such information to the concerned Superintendent Of police, in writing, through post, who, after being satisfied that the information discloses commission of cognizable offence, shall investigate the offence himself or direct an investigation to be made by the police officer subordinate to him and the said subordinate officer who is entrusted with the investigation, shall have the same power as that of the officer in charge of a police station. Section 155 Cr.P.C. relates to the FIR in non-cognizable offences and hence is eschewed for the present as it is not relevant for the purposes of the present case. Any officer in charge of a police station has got a right to investigate any cognizable offence, with out the order of the magistrate who has got jurisdiction to inquire into or try the said offence under provisions of chapter XIII of the code. Under Sub-section (3) of Section 156 Cr.P.C. the magistrate empowered under Section 190 may order for such an investigation as is mentioned under Section 156(1) Cr.P.C.. Sub-section (2) thereof is relevant. It provides that “156(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate”. Thus Section 156(2) of the code provides that an investigation conducted by a police officer in any such case shall at any stage be not a subject matter of challenge. Hence the investigation into a cognizable offence by a police officer can not be challenged at any stage and consequently, on this ground no proceeding or order can be quashed or set aside. This sub section is so coined as to put a bar to challenge any investigation into a cognizable offence, It is so enacted because under Section 41(1)(a) Cr.P.C. any police officer has a right to arrest, without the order of the magistrate and with out a warrant, a person who had been concerned in any cognizable offence even on the basis of credible information or reasonable suspicion. This is in harmony with the definition clause of cognizable offence under Section 2(c) Cr.P.C..
8. From such a scheme of investigation and legal position, under the code (Cr.P.C.) that the contentions of the counsel for the applicant is to be examined. After the said examination it is found that the submission does not seems to be a valid submission, and is devoid of merit and deserves to be repelled. It is not in dispute that SI Bhaduria was empowered to investigate the case under the orders of superior officer and hence there was no lack of jurisdiction vested in him to investigate. Before the order of transfer was communicated to him he had already filed the charge sheet and that order was communicated to him subsequently and hence the charge sheet cannot be said to be illegal. The magistrate has also taken cognizance on the said charge sheet and hence the cognizance under Section 190(1)(b) cannot be said to be illegal and consequently the charge sheet cannot be quashed. The contention of the counsel for the applicant in respect of Sections 36 and 157 of the code has no relevance with the controversy at hand. Section 36 of the code only lays down that the superior police officers than to the officer in charge of a police station will have the same exercisable power which the officer in charge of a police station possesses and nothing more. This is in accordance with Section 154(3) Cr.P.C.. Further it is clear from the certified copy of the order sheet, filed subsequently, that the two of the accused Hazi Oshaf Ali and Hazi Arif Ali did claim discharge before the magistrate and argued their case before it but they were unsuccessful. This they had done before they argued this application. The said order dated 4.3.06 is not under challenge and is binding on accused. Moreover, during the pendency of that application for discharge, by two accused, the present applicants, by concealing the aforesaid fact, had filed this application and hence this application is based on concealment of material fact and therefore, the applicants and guilty of prevarication and suppression veri. No prejudice has been caused to the accused by the submission of charge sheet against them consequently the prayer for quashing of the charge sheet and cognizance, can not be accepted. From the material on record it is prima facie established that the accused applicants have committed the murder of Nazim Ali @ Kallo, husband of the informant and there are eyewitnesses account of injured witnesses against them including that of informant. Consequently, on merits also this application is devoid of substance and being meritless is dismissed with cost of Rs. 5000/- each, imposed on the applicants, for prevarication and for supressio vari and suggestio falsi for concealment of material facts at the time of filing of this application. The cost is to be paid by them with a period of one month from today. In the event of their failure to pay the same within that period, the magistrate or the lower court concerned is directed to realize the same as arrears of land revenue within a period of one month thereafter and certify the same to this Court with fifteen days thereafter. This application is dismissed.
9. Let a copy of this order be transmitted to the lower court within three days for compliance.