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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

person, is against the judgment and orders dated 10th

January, 2013 and 19th  March, 2013 passed by the  High

Court of  Judicature at  Allahabad, Lucknow Bench, in Case

U/S 482/378/407 No.60 of 2013.   The first order dated 10 th

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

High Court vide judgment and order dated 19th 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.

However, from the impugned order dated 10th 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

Karavas on 24th 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

the impugned order dated 19th  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.”

 2. As regards reliefs (i), (ii) and (iii), the same stood disposed

of in terms of the impugned order dated 10th January, 2013,

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and rest of the reliefs were considered and answered by the

High Court vide impugned order dated 19th 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,

being Crime No.419 of 2010.  In the order dated 10th 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

end of the impugned order dated 10th  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

order dated  10th  January, 2013, has noted that the same

pertained to some other case unconnected with Crime No.419 of

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.  

5. The matter was then taken up by the High Court on 19th

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

portion from the impugned order dated 19th 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.

7. We reiterate that the none of the observation made by the

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.  

8. Besides this, no other aspect is required to be considered

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.  

9. Accordingly, we dispose of this appeal with the

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.  

10. A copy of this order be brought to the notice of the Trial

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.  

11. Ordered accordingly.  

.………………………….CJI. (Dipak Misra)

…………………………..….J.           (A.M. Khanwilkar)

…………………………..….J.           (Dr. D.Y. Chandrachud)

New Delhi; April  27, 2018.