Allahabad High Court
Pancham Kumar vs The State Of U.P And Anr. on 12 April, 2013
Author: Ajai Lamba
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 26 Case :- U/S 482/378/407 No. - 1730 of 2012 Petitioner :- Pancham Kumar Respondent :- The State Of U.P And Anr. Petitioner Counsel :- R.L Ojha,S.K Ojha Respondent Counsel :- Govt. Advocate,D.P.Dutt Tiwari,H.S.Tiwari Hon'ble Ajai Lamba,J.
1. Petitioner Pancham Kumar, who has been summoned to stand trial for commission of offence under Sections 364, 506 I.P.C. in context of victim Pawan Kumar, in Case Crime No.874 of 2003, has approached this Court in its jurisdiction under Section 482 Cr.P.C. praying for quashing order dated 3.12.2010, Annexure No.1, passed by Additional Chief Judicial Magistrate-IV, Sultanpur.
2. Petitioner carried revision petition that has been dismissed vide other order dated 20.3.2012, Annexure No.2.
3. The facts in brief are that allegedly Pawan Kumar, son of Vinay Kumar (complainant), was kidnapped.
4. The case was investigated, initially by one Mr. P.P.Singh. Midway investigation was taken over by another investigating officer.
5. Be that as it may, cancellation/final report was filed. Respondent no.2 complainant filed protest petition.
6. Petitioner has been summoned to stand trial by the Magistrate while noticing that sufficient evidence has come on record in the investigation file to indicate commission of offence by the petitioner. In this regard, reference has been made to the statement of the witnesses who had given their statements under Section 161 Cr.P.C.
7. Petitioner being aggrieved, filed a revision petition, which has been dismissed vide order dated 20.3.2012, Annexure No.2, while considering the fact that the Magistrate had not travelled beyond jurisdiction insomuch as the basis of summoning the petitioner is the evidence available on record of the investigation file.
8. Learned counsel appearing for the petitioner Shri S.K.Ojha has vehemently argued that manifest injustice has been caused because the material available on the investigation file in favour of the petitioner has not been considered by the Magistrate. Pawan Kumar was being victimized by the step-mother, because of which Pawan Kumar left the house and went to stay in the house of his maternal grand father. The petitioner happens to be the maternal uncle(Mama) of Pawan Kumar, the alleged victim. The witnesses whose statements were taken by the earlier investigating officer under Section 161 Cr.P.C. had allegedly given statements to the successor investigating officer, denying the earlier statements, without there being any order of reinvestigation. The witnesses have denied giving second statement during further investigation and this fact has also been ignored.
9. It has further been argued that the witnesses had given their statements before the Sub Divisional Magistrate also and they favoured the petitioner. Although, it has been mentioned in the impugned order that the boy Pawan Kumar had been murdered, however, learned counsel appearing for the petitioner states that step mother of Pawan Kumar had poisoned Pawan Kumar, however, the petitioner has been charged in that context for committing offence under Section 306 I.P.C., of abetting commission of suicide. The petitioner is being harassed in abuse of process of the law.
10. Learned counsel appearing for the respondent complainant has argued that the order passed by the Magistrate as well as the revisional court, are within jurisdiction. No illegality in the impugned orders can be traced. Relevant material has been taken into account from the investigation file. Jurisdiction of the Magistrate in summoning the petitioner on the basis of final report cannot be disputed.
11. I have considered the rival contentions.
12. Pointed attention of the Court has been drawn by Shri S.K.Ojha, learned counsel for the petitioner towards cancellation/final report dated 30.12.2003, conclusion whereof has been placed on record as Annexure No.5. It has been concluded by the investigating agency that after investigation, it has been found that biological mother of Pawan Kumar had died long back. Children of complainant, Kumari Ankita and Pawan Kumar had been living in their maternal grand parents' house and they studied there.
13. The complainant had contracted second marriage. Children did not want to go to the house of their own father. The complainant/ respondent no.2 had initiated proceedings before Sub Divisional Magistrate, Amethi so as to claim custody of children. Both the children appeared before the Sub Divisional Magistrate, Amethi and got their statements recorded to the effect that they were living in their maternal grand parent's house. Under the circumstances, custody of the children was continued with the maternal grand parents. In such circumstances, it cannot be said that the offence of kidnapping has been committed.
14. Pawan Kumar, the alleged victim gave his statement on 15.12.2003 (Annexure No.7) before the Sub Divisional Magistrate in which Pawan Kumar has clearly stated that he was fed up with the harassment being meted out in the house of his father. He was being given beatings, frequently. No arrangement for his education was made. Under the circumstances since 15.5.2003 he was living in the house of his maternal grand parents. The Court posed a question whereupon Pawan Kumar replied that his maternal grand father had not brought him and his sister per force, rather, being fed up of the treatment meted out by his father and step mother, Pawan Kumar had gone to his maternal grand parents house of his own accord.
15. Although, for considering the present controversy, statement of Ankita, sister of Pawan Kumar might not be directly related, however, the statement given by Pawan Kumar has been confirmed and endorsed by Ankita. Ankita has endorsed the statement of her brother in saying that respondent complainant father got remarried after the death of biological mother of Ankita. After re-marriage, the mother and father did not treat Ankita well. Ankita had been brought up right from childhood, in her maternal grand parents' house. Ankita and her brother had not been taken by maternal grand parents per force rather they had gone of their own accord. In answer to a Court's question, Ankita also states that she would like to stay in the house of her maternal grand parents.
16. The Magistrate was required to consider the facts and circumstances of the case, so as to see whether to accept the cancellation/final report or to conclude that there is sufficient material to summon the accused on the basis of material available in the cancellation/final report. This discretion, however, is required to be exercised judiciously and objectively. There might be an unsigned statement on the record and there might be other material which is more reliable in nature. Such quality of evidence is required to be considered before objectively proceeding in the matter and exercising jurisdiction. An order of summoning cannot be passed casually, in disregard to relevant and material/evidence that has more evidentiary value. Order of summoning seriously affects the rights of accused, who would consequently be asked to stand trial.
17. In the case in hand the Magistrate has only considered isolated statements of some witnesses recorded under Section 161 Cr.P.C. to come to a conclusion that there is sufficient material on record to summon the petitioner as accused. The record of proceedings before the Sub Divisional Magistrate, initiated by respondent no.2 complainant, on an issue directly related, was available on record with the cancellation/final report. The alleged victim i.e. Pawan Kumar himself had appeared before the Magistrate in proceedings under Sections 97 and 98 of the Code of Criminal Procedure to say that he had been living with his maternal grand parents of his own will and accord. The said statement was endorsed by Ankita, his sister. It appears that the witnesses, during the course of investigation, had given statements to similar effect, even before the earlier investigating officer Shri P.P.Singh. The Magistrate, however, has not taken into account the proceedings carried before the Sub Divisional Magistrate in regard to custody of Pawan Kumar. It is also apparent that the statements recorded by the earlier investigating officer Shri P.P.Singh, have also not been considered. This shows that the Judicial Magistrate has not approached the controversy with the objectivity and legality with which he was required to.
18. The investigating agency has vast powers of investigation under Chapter XII of Code of Criminal Procedure, 1973. Employing those powers, reliance has been placed by the Investigating agency on the statements recorded by the Sub Divisional Magistrate. Such material and conclusion is not required to be brushed aside without a good reason. In the case in hand, the Judicial Magistrate has not even referred to the proceedings carried before the Sub Divisional Magistrate under Sections 97 and 98 of the Code of Criminal Procedure.
19. Thus, this Court finds that the approach of the Magistrate was wholly illegal, without the required objectivity and the impugned order had been passed de hors the most relevant material and in consideration of isolated material.
20. This Court has taken into account the fact that proceedings before the Sub Divisional Magistrate were under Sections 97 and 98 Cr.P.C. and therefore, Sub Divisional Magistrate was a legal authority before whom statements were given by relevant witnesses and parties. Such statements can surely be considered as relevant as they are on the issue involved and have been recorded by an authority having competent jurisdiction. A statement given or affidavit filed by a person on related issue in legal proceedings before an authority having competent jurisdiction can certainly be considered as relevant material.
21. Respondent no.2 wants to prosecute the petitioner for commission of offence under Section 364 I.P.C. viz. kidnapping and abduction by the petitioner who is none other but maternal uncle/Mama of Pawan Kumar, the alleged victim. Because Pawan Kumar gave statement to the Sub Divisional Magistrate to the effect that he had gone to live in his maternal grand parents' house of his own will and accord because he had been tormented by his father and step mother, it became imperative for the Magistrate to consider the record of Sub Divisional Magistrate in context of the issue, including the statement of Pawan Kumar and Ankita. This having not been done, there has been failure of justice, rather injustice has been caused.
22. This Court has taken into account the fact that the petitioner Pancham Kumar is maternal uncle of Pawan Kumar. If the contrary stands are taken into account, surely respondent no.2 was aggrieved against the maternal grand parents or maternal uncle of Pawan Kumar, because they had given refuge to Pawan and Ankita. Thus, false implication cannot be ruled out.
23. In view of the above, petition is allowed. Order dated 3.12.2010 passed by Additional Chief Judicial Magistrate-IV, Sultanpur and the order dated 20.3.2012 passed by the revisional court are hereby quashed. The case is remanded back to the Magistrate to consider what has been said in this order in context of the entire material available on the investigation file and thereafter pass appropriate orders as required in law and in the facts and circumstances of the case.
Order Date :- 12.4.2013 Shukla