Allahabad High Court
Om Prakash And Ors. vs State Of U.P. And Anr. on 25 August, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 10 Case :- APPLICATION U/S 482 No. - 929 of 2017 Applicant :- Om Prakash And Ors. Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Rajendra Prashad Mishra,Raghvendra Singh Counsel for Opposite Party :- Govt. Advocate,Anurag Singh,K.K. Singh Rathour,Syed Aftab Ahmad Hon'ble Dinesh Kumar Singh,J.
(Application No.14 of 2022)
1. The application seeks recall of the order dated 12.04.2022.
2. Heard learned counsel for the applicants-petitioners.
3. Allowed.
4. Order dated 12.04.2022 is hereby recalled.
5. The petition is restored to its original number.
(Order on Memo)
6. Present petition under Section 482 Cr.P.C. has been filed seeking quashing of the proceedings of Criminal Case No.3682 of 2010: Smt. Madhuri vs Anoop Kumar & Ors, arising out of Case Crime No. 879 of 2008 under Sections 147, 302, 201 IPC, Police Station Mishrikh, District Sitapur as well as summoning order dated 23.12.2015 whereby the petitioners have been summoned to face trial under Sections 147, 302, 201 IPC.
Further challenge has been made to the order passed by the learned Additional Sessions Judge, Court No.11, Sitapur in Criminal Revision No.50 of 2016 dismissing the revision of the petitioners instituted against the summoning order dated 23.12.2015.
7. The complainant/respondent No.2 filed an application on 14.12.2007 under Section 156(3) Cr.P.C. alleging that her son was killed on 12.11.2007 at around 9 A.M. by the accused-petitioners and his dead body was hanged from a tree. On the basis of order passed by learned Magistrate the FIR at Case Crime No.879 of 2008 came to be registered on 11.07.2008 under Sections 147, 302, 201 IPC against the accused-petitioners.
8. The investigating agency, however, filed closure report in favour of the petitioners on 24.07.2008. Against the closure report, the complainant filed a protest petition, and the learned Magistrate considering the evidence and material, took cognizance under Section 190 Cr.P.C. and summoned the accused-petitioners for offences under Sections 147, 302, 201 IPC vide order dated 29.07.2010.
9. The petitioners thereafter filed a petition under Section 482 Cr.P.C. being Criminal Miscellaneous Case No.48 of 2011.
10. This Court on 31.01.2011 passed the following order in the said petition:-
"Supplementary affidavit filed by the petitioners is taken on record.
The petitioners have challenged the order dated 29th of July, 2010, passed by the learned Chief Judicial Magistrate, Sitapur on the ground that the learned Magistrate has taken cognizance of offence on the protest application under Section 190(1)(b)Cr.P.C., which provides that the Magistrate may take cognizance of any offence in exercise of power provided under the aforesaid section, but the Magistrate may take cognizance of offence only upon the police report of such facts. He further submits that the complaint case can never be treated as a police case, whereas the learned Magistrate has directed to proceed as State Case.
Upon perusal of the order impugned the submission of learned counsel for the petitioners cannot be disputed. I am of the view that the learned Magistrate on the basis of complaint can may take cognizance of offence only under Section 190 (1)(a) Cr.P.C. and that is not the State case in any manner, therefore, I hereby modify the order impugned to the extent that the cognizance taken by the learned Magistrate shall be considered as cognizance taken under Section 190(1)(a) Cr.P.C. and the learned Magistrate shall proceed with the case accordingly.
In the aforesaid terms the petition is disposed of finally. "
11. From perusal of the aforesaid order, it is evident that learned Single Judge was of the opinion that this petition was not a state case and, therefore, the order dated 29.07.2010 passed by the Magistrate was modified to the extent that cognizance taken by the learned Magistrate should be considered as cognizance taken under Section 190(1)(a) Cr.P.C. and the Magistrate should proceed with the case accordingly.
12. Thus, this Court directed the learned Magistrate to treat the protest petition as a complaint case. After passing of the aforesaid order by the this Court, the case was registered as a complaint case vide Case No.3692 of 2010.
13. Statement of the complainant was recorded under Section 200 Cr.P.C. on 09.06.2019. In her statement recorded under Section 200 Cr.P.C., the complainant said that on 22.11.2007 at around 9 A.M. accused-Anup Kumar took her paralyzed son, Sohit in respect of some theft allegedly committed by Sohit in the shop of Anup's uncle. Accused-Anup was an occultist. On the same day, the body of the son of the complainant was found in a field hanging from a tree which is near to the worship place of Anup Kumar. In the evening, the accused-Gulshan, Ashutosh, Om Prakash, Krishna Prakash and many other persons brought the dead body of her son to the house of the complainant. At that time, no male member of the family was present. When the husband of the complainant came home, he found the dead body of his son lying in the house, he became unconscious and the dead body was buried by accused-Gulshan, Ashutosh, Om Prakash, Krisha Prakash and others. Later on, elder brother of the husband of the complainant got the full information about the incident from Munni Devi an eye witness and other persons that accused-Gulshan, Ashutosh, Om Prakash and Krishna Prakash had strangulated the deceased and after killing him hanged his body from the tree. He gave information to the higher authorities and then dead body was exhumed and post mortem on the body gotconducted.
14. Mr.Uttam Kumar Mishra, Smt. Munni, Mr. Bhagauti Prasad and Dr.Arun Kumar were examined under Section 202 Cr.P.C.
15. Mr. Uttam Kumar Mishra was the elder brother of the husband of the complainant. He said that Sohit's one hand was amputated and, therefore, he could not have hanged himself from a tree. When he enquired about the incident from people, he was informed that Anup took the deceased on 22.11.2007 at 9:00 A.M. from the house and he was of the confirmed view that it was accused-Anup, who had killed the deceased on which he gave a complaint on 23.11.2007 at the police station and, thereafter, dead body was taken out from the grave and post mortem was conducted. It was further said that from interration with Munni Devi, he could come to know Anup, Gulshan, Ashutosh, Om Prakash had killed his nephew.
16. Smt. Munni Devi in her statement recorded under Section 202 Cr.P.C. stated that she witnessed accused-Anup, Gulshan, Ashutosh, Om Prakash, Krishna Prakash strangulating the deceased by a rope. Sohit was crying and she tried to stop the accused but they threatened her and chased her away from the place of the incident. She came home and after sometime, she could come to know that Sohit was killed.
17. Mr.Bhagwati Prasad, grandfather of the deceased-Sohit in his statement stated that deceased-Sohit's left hand was amputated in a flour mill, and his both legs were also broken. He used to have difficulty even in answering the natural call. Some theft was committed in the shop of Anup's uncle, Sohit's name came in relation to said theft. On 22.11.2007 Anup took Sohit from his house and on the same day at around 12:30 Hours, his dead body was found hanging from a tree near his worship place. He could come to know from Munni Devi and others that Anup, Gulshan, Ashutosh, Om Prakash, Krishna Prakash had killed the deceased by strangulating him by a rope.
18. Dr.Arun Kumar Gautam, who conducted the post mortem examination on the body of the deceased was also examined.
19. Learned Magistrate after considering the statements of the complainant and the witnesses under Sections 200 and 202 Cr.P.C. respectively summoned the petitioners vide impugned order dated 23.12.2015 and was of the opinion that prima facie offence under Sections 147, 302, 201 IPC was made out against the accused-petitioners. They were summoned vide impugned order dated 23.12.2015. The complainant was directed to file a list of witnesses.
20. Mr.Rajendra Prasad Mishra, learned counsel for the petitioners has submitted that the learned Magistrate has failed to appreciate that there is no evidence to take cognizance or for summoning the petitioners for offences under Sections 147, 302, 201 IPC. Police had already filed closure report earlier after considering the statements of the complainant and witnesses. Their evidence is neither credible nor cogent and, therefore, summoning the petitioners on the basis of statements of the complainant and the witnesses is wholly illegal and impugned order is liable to be set aside.
21. Learned counsel for the petitioner has further submitted that the cause of death in the post mortem report is not strangulation but it is asphyxia as a result of hanging. He, therefore, has submitted that the allegation that the deceased was strangulated by the petitioners, and other accused, and he was hanged from the tree cannot be believed. Learned counsel for the petitioners has also submitted that the complainant has not filed any list of witnesses along with protest petition and, therefore, in absence of this mandatory requirement under proviso 2 of Section 202(2) Cr.P.C. the complaint was required to be rejected.
22. On the other hand, Mr.Anurag Singh, learned counsel appearing for opposite party No.2 and Mr.Rao Narendra Singh, learned A.G.A have opposed the petition and have submitted that the learned Magistrate had taken cognizance on the closure report submitted by the police but his Court vide order dated 31.01.2011 had directed that the protest petition to be treated as complaint. They have submitted that evidence of eye witnesses, Munni and others would prima facie disclose commission of the offence by the petitioners. At the stage of taking cognizance and summoning the accused, only prima facie case is to be considered. From reading of the statements of the complainant and the witnesses, it cannot be said that no prima facie offence is made out against the petitioners. They therefore, have submitted that this petition challenging the impugned order 23.12.2015 taking cognizance and summoning the petitioners has no merit and liable to be dismissed.
23. In respect of submission that mandatory provision of proviso 2 to sub section 2 of Section 200 Cr.P.C. has not been complied with, they have submitted that it was the protest petition which was treated as complaint case by the learned Magistrate and after examining the complainant and witnesses, when learned Magistrate has found prima facie case to hold further enquiry, he has directed the complainant to file a list of witnesses. List of witnesses has already been filed. Learned Magistrate will examine the complainant and the witnesses on oath to hold an enquiry as provided under Section 202 Cr.P.C. before committing matter of Sessions Court. They have, therefore, submitted that there is no illegality in the procedure adopted by learned Magistrate, and the present petition has no merit which is liable to be dismissed.
24. I have considered the submissions of Mr.R.P. Mishra, learned counsel appearing for the petitioners, Mr.Anurag Singh, learned counsel appearing for the complainant and Mr.Rao Narendra Singh, learned A.G.A. for the State.
25. From the statements of the complainant and the witnesses recorded under Sections 200 and 202 Cr.P.C., it cannot be said that no offence under Sections 147, 302, 201 IPC has been made out. Post mortem report has only corroborative value, and it is not a primary evidence. Post mortem is an expert opinion and if there is an eye witness account, the accused cannot get away only on the basis of post mortem report.
26. I, therefore, do not find any substance in the submissions of learned counsel for the petitioners that there is no evidence available against the petitioners for summoning them to face trial under Sections 147, 201, 302 IPC
27. So far as submission of the learned counsel for the petitioners that in absence of list of witnesses with the complaint/protest petition, protest petition was required to be rejected, this Court considers that proviso 2 to Section 202(2) Cr.P.C. provides that in an enquiry if the Magistrate is of the opinion that offence complained of is triable exclusively by the Court of Session, then the learned Magistrate is required to call upon the complainant to produce all his witnesses and then he should examine them on oath.
28. In this case, after considering the statement of the complainant and the witnesses recorded under Section 200 and 202 Cr.P.C. learned Magistrate was of the opinion that prima facie offence under Sections 147, 201, 302 IPC is made out against the petitioner which is triable by the Sessions Court, therefore, learned Magistrate has called upon the complainant to submit list of witnesses for examining them on oath. Learned Magistrate has not committed any error of law in passing the impugned order and directing the complainant to file a list of witnesses to be examined on oath before committing the case to the learned Sessions Court.
29. The Supreme Court in the case of Rosy & Anr vs State of Kerala : (2000) 2 SCC 230 has held that under Section 200 read with 202 Cr.P.C., it is only at the discretion of Magistrate to decide whether to hold an inquiry or not before issuing process to the accused. Question of complying with the proviso 2 to Section 202(2) Cr.P.C. would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry, and further decides to take evidence of witnesses on oath. The object and purpose of holding inquiry or investigation under Section 202 Cr.P.C. is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issuing of process against the accused or dismissal of the complaint. The Supreme Court has held that it is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any doubt that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.
30. Enquiry under Section 202 Cr.P.C. is of limited nature. Firstly, to find out whether there is prima facie case in issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out whether or not there is sufficient ground for proceeding against the accused. The standard to be adopted by the Magistrate in scrutinizing the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 Cr.P.C. accused has no right to intervene and that it is the duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made.
31. The Supreme Court in the case of Shivjee Singh vs Nagendra Tiwary & Ors: (2010) 7 SCC 578 has held that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the Magistrate of the jurisdiction to take cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so.
32. The complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. Only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issuance of process. Then the choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case. At the stage of taking cognizance and issuing process, the Magistrate has only to see whether there exists sufficient ground or not.
33. Considering the proviso 2 of Section 202 (2) Cr.P.C. and the judgments cited above, I am of the considered view that the list of witnesses can be called at later stage from the complainant, if the learned Magistrate is of the opinion that the offence is exclusively triable by the Sessions Court in order to examine the complainant witnesses on oath to hold an enquiry under Section 202 Cr.P.C. at the initial stage, even if the list of witnesses are not filed with the complaint/protest petition, but on examination of the complainant and the witnesses produced, learned Magistrate is of the opinion that there is a prima facie case against the accused, the order passed by the learned Magistrate would not get vitiated.
34. In the present case, learned Magistrate has called upon the complainant to furnish list of witnesses to be examined on oath to hold an enquiry as the offence is exclusively triable by the Sessions Court, and this Court does not find that learned Magistrate has committed any error of law or jurisdiction in doing so.
35. In view of the aforesaid discussion, present petition being devoid of merit and substance is hereby dismissed. If the petitioners surrender before the trial Court and apply for regular bail, their bail application(s) should be considered expeditiously in accordance with law.
(Dinesh Kumar Singh, J.) Order Date :- 25.8.2022 prateek