Justice Rajnish Singh Chauhan was hearing a matter where three FIRs dated 20.12.2019 and 21.12.2019, two of which were filed on the same day. The petitioner was charged along with a few protestors allegedly protesting against the implementation of CAA-NRC and engaging in violence with the police officials.
The second FIR was lodged under Sections 147, 148, 149, 332, 336, 307, 353, 341, 427, 188 & 120-B I.P.C read with Section 3/4 of Public Property (Prevention of Damage) Act, 1985 and Section 7 of Criminal Law (Amendment) Act, 1932.
The third FIR The aforesaid third F.I.R. was lodged by the Constable Driver Sri Dileep Kumar Gautam, driver of Additional Superintendent of Police. As per the allegation of this FIR, the petitioner was among the crowd of about 600-700 people who threw stones on the ASP’s vehicle, due to which the A.S.P. moved forward along with his associate Constables. Due to that incident, the vehicle of the A.S.P. got damaged and two Constables sustained injuries.
However, it was noted that the petitioner was absolutely unaware as to what information has been collected by the Investigating Officer suggesting against the present petitioner regarding his involvement in the incidence in question and the basis on which his charge sheet was taken cognizance of by the Additional Chief Judicial Magistrate, Bahraich.
The Bench raised concerns regarding the perusal of the evidence on record by the Magistrate and observed-
“Even if the Magistrate has appreciated and perused the material available on record while taking cognizance of the FIR dated 05.08.2020, at least while taking cognizance of second and third charge-sheet, the Magistrate must have asked the Investigating Agency as to why after carrying out separate investigation in all the three, more or less similar, incidents, three separate charge-sheets have been filed therein. The Magistrate must have asked as to why all the three charge-sheets have not been clubbed together for the purposes of trial. The learned Magistrate must have seen that what prejudice would be caused to the prosecution if the single charge-sheet is filed clubbing all the chargesheets together inasmuch as Section 220 Cr.P.C. itself authorizes that in a similar situation the accused person should be tried in one trial. Therefore, the guidelines of Hon’ble Apex Court in re:Fakhruddin Ahmad…must have been followed by the learned Magistrate while taking cognizance of the charge-sheet.”
The Single Bench also observed that the Test of Sameness as propounded by the Hon’ble Apex Court in re: Babubhai vs. State of Gujarat [(2010) 12 SCC 254] should have been applicable to the case. Referring para-21, which reads as under:-
“21….whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the ‘Test of Sameness’ which says that where there is proximity of time, or place or unity of purposes and design or continuity of action in respect of series of acts, the safe inference may be drawn that they form part of the same transactions, therefore, the aforesaid test appears to have been applied in the present case.”
It was further observed that-
“’Test of Sameness’ which says that where there is proximity of time, or place or unity of purposes and design or continuity of action in respect of series of acts, the safe inference may be drawn that they form part of the same transactions, therefore, the aforesaid test appears to have been applied in the present case.”
Case:- U/S 482/378/407 No. – 4542 of 2021
Applicant:- Shamshad Ahmad
Opposite Party:- State Of U.P. Thru. Prin. Secy. Home. Lko & Another
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