Allahabad High Court
Shiv Kumar vs State Of U.P. & Anr. on 1 November, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- U/S 482/378/407 No. - 7726 of 2019 Applicant :- Shiv Kumar Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Manoj Kumar Gupta,Keshav Ram Chaurasia Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
The present application under Section 482 Cr.P.C. is moved on behalf of the applicant against the order of the Court dated 7.9.2018 passed by Additional Chief Judicial Magistrate Court No.1, Unnao, treating protest application against the police report filed by opposite party no.2 as complaint.
Consequent thereupon proceeding under Sections 200 and 202 of the Criminal Procedure Code for recording statement of complainant and supporting evidence were taken. Thereafter taking cognizance of the offences, the Magistrate issued summons. The question is whether the proceeding is illegitimate for allowing the application under Section 482 Cr.P.C.
The learned counsel pressing on the application with a view to exercise the extraordinary jurisdiction under Section 482 Cr.P.C. vested in the court to quash the proceeding as argued that before the court that after considerable lapse of time of 11 years the protest application was taken on record to the same was kept pending. Another protest application moved by the opposite party no.2 was taken into consideration and the same is treated as complaint vide impugned order dated 7.9.2018. Another ground on which learned counsel seeks the relief of quashing the proceeding is that witnesses named in the FIR were not examined under Sections 200 and 202 Cr.P.C. whereas the witnesses examined under the aforesaid sections by the court were not named in the FIR. He further argued as third ground to show the illegality in the order that doctor who did the medical examination of the injured is examined as witness, though retired long ago. On the aforesaid grounds, he stressed on the point of reliability and credibility of the witnesses and whatever deposed on oath by the court, whereupon the court took cognizance of offence for issuance of summon to the applicant for trial.
Heard learned counsel for the applicant, learned A.G.A and perused the material placed on record.
First of all the F.I.R's allegation are to be read. The incident has happened on 4.1.2002 and F.I.R. was registered on 5.2.2002. On reading the FIR registered on moving complaint by opposite party no.2, on 5.1.2002 belatedly the delay in registering FIR by police cannot hamper the right of the victim to prosecute offender.
The allegations as to the dispute with regard to flow of water, whereupon efforts made by opposite party no.2 to get open the flow of water, which occasioned scuffling of parties with incident of beating. Resultantly the wife of opposite party no.2, who was undergoing pregnancy got injured. It is reported that the parties to the incident are neighbors. The allegations reported are in themselves on their face value, if taken true prima facie fulfill the ingredients of offence with the accused-applicant are slapped.
After investigation the police found out that in vengeance of the dispute between the parties the F.I.R. is lodged and submitted the report before the court. Naturally and having statutory right to move the protest application, the opposite party no.2 moved a protest application on 1.3.2004 which was kept on record, without further disposal another protest application dated 7.9.2015 was filed and the court taken the same into consideration.
So far as the question as to the pendency of first protest application while the Magistrate entertained the second protest application of the opposite party no.2 against police report, it is of importance that first protest application simply kept on record without any further action. Obviously due failure on the part of court for a considerable lapse of time of more than 10 years. When the second protest application was moved, the machinery of the court came into motion and the same was entertained. Since, the first one was not decided or adjudicated by the court entertaining the second application is not barred by the principle of res-judicata, apparently there is no error in entertaining and deciding the protest application.
Since, the Magistrate is empowered to treat the protest application as complaint, even by the Full Bench of Allahabad High Court in the case of Sukhwasi Vs. State of U.P. & Anr. reported in 2007 (59) ACC 739, therefore, this also not seems erroneous on the part of the court. After recording statement of victim and the supporting witnesses under Sections 200 and 202 Cr.P.C. the court took cognizance of offence and summons were issued. The arguments of learned counsel that the eye witnesses named in the incident at that time were not examined, the witnesses examined are not named in the complaint is not tenable at the stage of hearing an application under Section 482 Cr.P.C. as the same is relating with appreciation of evidences. The question of admissibility, reliability, credibility and veracity of the witnesses is a matter of appreciation of evidence which can only be done by the trial court while getting examination on oath and cross examine by the defence. Before that this court is not competent to make any finding as to the veracity of the statement or credibility of the witnesses in the application under Section 482 Cr.P.C.
Lastly, learned counsel for the applicant argued that the medical examination done by a doctor, as he then was posted in hospital where the wife of opposite party no.2 was examined, after retirement he produced before the court for statement after considerable lapse of time of 17 years. This question is also to be discussed in the trial and the credibility of the witnesses cannot be found out in the present application under Section 482 Cr.P.C. on the basis of material placed before the Court. The statement of doctor in view of the learned counsel is discrepant with the medical report, but this is also a matter of cross-examination and testing the veracity and credibility of the witnesses, which cannot be done at this stage.
Looking into the facts and circumstances of the case the application is not maintainable as no prima facie case for quashing of the proceeding arises here, accordingly, application is rejected. The prosecution is legitimate and the applicant-accused should participate therein.
Further, to make a balance between the legitimate prosecution and personal liberty of the applicant accused, it would be pertinent to mention here that the issuance of process of the court in a proceeding like summons, bailable warrant or non bailable warrant all only meant for procuring and ensuring the attendance of the applicant-accused in the prosecution running against him.
Learned counsel for the applicant at this stage submits that he is willing and ready to participate in the proceeding, if his personal liberty is safe.
In view of the above, if the applicant-accused appears within 15 days from the date of order and applies for bail, the court below keeping into mind to ensure his presence and attendance during trial shall decide the same as expeditiously as practicably possible, even on the same day.
Meanwhile, within the aforesaid 15 days or till the date when the accused-applicant appears before the court and applies for bail, no coercive action shall be taken against the applicant pursuant to the order of cognizance and summoning order dated 25.05.2019.
Order Date :- 1.11.2019 Gaurav/-