Allahabad High Court
Sunil Pathak And 7 Others vs State Of U.P. And Another on 5 March, 2020
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 67 A.F.R. Case :- APPLICATION U/S 482 No. - 12176 of 2013 Applicant :- Sunil Pathak And 7 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Shukla,B0123,Bharat Bhushan Dubey Counsel for Opposite Party :- Govt. Advocate,Satya Dheer Singh Jadaun AND Case :- APPLICATION U/S 482 No. - 41464 of 2013 Applicant :- Smt. Mithlesh Kumari Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.D. Singh Jadaun Counsel for Opposite Party :- Govt. Advocate,Anurag Shukla Hon'ble Rahul Chaturvedi,J.
[1] On 29.01.2020, Registrar(Listing) of this Court has apprised me about two orders of Hon'ble the Apex Court dated 12.09.2019 and 30.01.2020, by which Hon'ble the Apex Court has expressed its desire to decide aforementioned cases as expeditiously as possible within a period of two months. Since, there was a clear and unambigous directions from Hon'ble the Apex Cout, both the applications filed under Section 482 Cr.P.C. numbered above, should be taken at top most priority but for one reason or other, the matter is being deferred till 05.03.2020. Today(05.03.2020), this Court heard learned counsel for the parties at length and judgments are ordered to be dictated in chamber.
[2] Since parties, its genesis as well as dates and its events are almost one and same in both the cases and thus, for the sake of convience and brevity, the Court is proposing to decide/dispose of the matter by one common judgment after hearing the counsels for both the parties on merits.
APPLICATION U/S 482 No. - 12176 of 2013 (Sunil Pathak And 7 Others vs. State of U.P. and Another [3] Heard Sri Anurag Shukla and Sri Bharat Bhushan Dubey, learned counsels for the applicants, Sri Satya Dheer Singh Jadaun, learned counsel for opposite party as well as learned A.G.A. Pleadings have been exchanged between the parties and the matter is ripe for final submissions.
[4] There are eight applicants who are jointly invoking the extra-ordinary jurisdiction of this Court under section 482 Cr.P.C. with the prayer to quash the entire proceeding of complaint case no.52 of 2011(Smt. Sunita Vs. Sunil Pathak and others) under section 395 IPC, Police Station-Dibiyapur, District-Auraiya pending in the court of Additional Sessions Judge/Special Judge(D.A.A) District-Auraiya and summoning order dated 15.02.2013. Bench of this Court vide its order dated 11.04.2013 has granted interim protection by staying the proceedings of the case referred above by issuing notices to the private parties.
Before deciding the case, it is imperative to spell out the bare skelton facts of the case in hand.
[5] Contention raised by learned counsel for the applicants is that the contesting parties are at the warring ends since long. Wayback in the year 1994, husband and other family members of Ms. Sunita Tiwari(opposite party no.2) have brutally assaulted and killed one Ram Asre, brother of applicant nos. 4, 5 and 6. An FIR to this effect was lodged by one Ram Das Pathak against five named persons specifying the role of actual assault on the deceased to one Pintu@Pradyum Tiwari, husband of opposite party no.2. The said FIR was registered as Case Crime No.444 of 1994 under sections 147, 148, 149, 302, 504, 506 IPC, Police Station-Dibiyapur, District-Etawah. Few of the named assailants were on run and the police has submitted its report under section 173(2) Cr.P.C. endorsing the names in the column of "Absconders".
[6] Again, in the year 2007, history has repeated when husband and family members of opposite party no.2 again assaulted and committed yet another murder of brother of present applicant namely Ram Das Pathak(now deceased) of which Ram Swaroop Pathak has got an FIR registered against seven named accused persons including the husband of opposite party no.2, Pintu@Praduman Tiwari as one of the named accused. The incident took place on 18.11.2007 at 1:30 p.m. of which the FIR was got registered on the same day at 15:30 p.m. as Case crime no.300 of 2007 under sections 147, 148, 149, 302, 307 IPC, Police Station-Dibiyapur, Distric-Auraiya.
The story set up in the instant FIR was that at 18.11.2007 around 1:30 in the afternoon, informant's brother Ram Das@Allu Pathak and informants neice Km. Sarita went to purchase some domestic goods from Hari Kishan Tiwari, a quota dealer, all of sudden, named accused persons who are eight in numbers including Pintu@Praduman Tiwari all armed with lethal fire arms assaulted upon informant's brother Ram Das@Allu. All the assailants armed with deadly fire arms(licensed or even otherwise) virtually pumped bullets in the body of deceased Ram Das@Allu Pathak causing a cold-blooded murder of the deceased in broad day light in a most brutal and barbaric way. An FIR of this case too was registered as Case Crime No.300 of 2007 under sections 147, 148, 149, 302, 307 IPC, Police Station-Dibiyapur, District-Auraiya on 18.11.2007 at 15:30 hrs against Pintoo@Praduman Tiwari and six others causing murder of Ram Das Pathak@Allu Pathak and injuring Anuj.
[7] Prompt FIR was got registered at 15:30 hours at Police Station-Dibiyapur, District-Auraiya. It is next contended that place of incident is near the shop of Hari Kishan Tiwari, Quota Dealer, village-Chapauli. It is also worthwhile to point out here that Pintoo@Praduman Tiwari is the common name in both the case crime numbers of 1994 as well as 2007.
[8] The next contention raised by learned counsel is that in order to "create" counter pressure/case and to save themselves from the wrath of the present FIR i.e. case crime no.300 of 2007, opposite party no.2, left no stone unturned to lodge the FIR against the applicants by creating an imaginary story. When all the attempts went in vain, thereafter, with the aid and help of local political leaders, on 06.05.2008(almost six months after), opposite party no.2 has succeeded in lodging the FIR as case crime no.300A of 2007 under section 395 IPC against as many as eleven named accused persons for committing dacoity on 18.11.2007 around 2:00 p.m. on the same day of which, earlier FIR, having case crime no.300 of 2007 was got registered. At this juncture, learned counsel for the applicants has drawn attention of the Court to the date and time of both the incidents. Intrestingly, time and date of case crime no.300 of 2007 is 18.11.2007 at 1:30 in the day, whereas, time and date of incident of case crime no.300A of 2007 is 18.11.2007 itself but at 2:00 p.m, whereby allegations of dacoity has been pasted upon all the applicants. It is contended that no plausible justification coming forward explaining the inordinate delay of six months in lodging the FIR having Case Crime No.300A of 2007.
[9] After conducting thorough investigation, police has submitted "closure report" under section 173(2) Cr.P.C. on 17.11.2008 in case crime no.300A of 2007 under section 395 IPC against applicants. Dissatisified by the ultimate result of invsetigation of case crime no.300A of 2007, opposite party no.2 has filed protest petition before the court below which too was consigned to records after being rejected on 08.06.2011 and learned Special Judge, D.A.A. Auraiya has accepted the final outcome of the investigation and put a seal of approval over the said "Closure Report. Aggrieved by the order of Special Judge, D.A.A., an application under section 482 Cr.P.C. was preferred before Bench of this Court bearing No.20615 of 2011 decided on 05.07.2011 and this Court too did not oblige the opposite party no.2 in upsetting the orders of Special Judge, D.A.A. and rejected the aforesaid application, part of which is quoted hereinbelow :-
"From perusal of the record, it appears that the learned Special Judge has passed well reasoned order dated 08.06.2011. The trial court has not committed any error in passing the impugned order. Therefore, the prayer for quashing the aforesaid order is refused.
It shall be open to the applicant to file a complaint in respect of the commission of alleged offence. In case, any complaint is filed by the applicant before the court concerned, the court concerned shall proceed further in accordance with law.
With the above direction, this application is finally disposed of. "
[10] While passing the aforesaid order confirming the orders of Special Judge(D.A.A.) Auraiya, a tangent/casual observation was made by this Court that it shall be open for the applicant that applicant, if so advised, may file complaint in respect of the alleged offence and in case such application is filed, the court concerned shall proceed strictly in accordance with law. There was no obligation or mandate by the High Court to file complaint case.
[11] On the strength of abovementioned casual and tangent observation of the court, opposite party no.2, just to create counter pressure on 23.07.2011, has filed complaint case against the accused persons with the allegation of committing dacoity of Rs.9,000/- from the complainant. As per the procedure laid down in Chapter XV of Cr.P.C., statement of opposite party no.2 was recorded under section 202 Cr.P.C. on 08.08.2011. Thereafter, on 04.10.2011, statements under section 200 Cr.P.C. of Mithelesh Kumari(CW-1), Shashi Prabha(CW-2) were recorded and on 27.03.2012 statements of Virendra Kumar(CW-3) and Sita Ram(CW-4) were recorded. The entire endeavour and attempt on the part of opposite party no.2 is to anyhow create counter version/pressure of the aforementioned muder case may be diluted and mellow down. In this spree, they managed to procure the injury report of one Anurag Krishna the alleged injured from the doctor on 23.11.2007 which is annexed on record. Learned Special Judge/Additional Sessions Judge, D.A.A. Auraiya vide order dated 15.02.2013 was pleased to summon the applicants under section 395 IPC by passing an order without furnishing necessary details for recording his satisfaction it it. It seems that learned Judge was over-awed by the alleged criminal antecendents few of applicants [12] Submission advanced by learned counsel for the applicants is that impugned summoning order dated 15.02.2013 by learned Special Judge(D.A.A.) Auraiya is a usual one. In the opening paragraph, there is narration of prosecution case and its genesis. Not only this, learned trial Judge has completely misread the orders of this Court while disposing the earlier 482 Cr.P.C. application. This Court has never directed or granted any liberty to file the complaint as mentioned in the impugned summoning order. In the next paragraph, the material supplied by the complainant in support of her case, including the alleged criminal history of few of the applicants and in the last paragraph of impugned summoning order, it is dedicated to drop the names of Smt. Shakuntl Devi and Smt. Shanti Devi as an accused. Being ladies, no case against them is make out under section 395 IPC. Since, the rest of the accused are male members and few of them are having criminal history, thus, per opinion of the Additional Sessions Judge, D.A.A. Auraiya, they are prima facie culprit of Section 395 IPC. Except, this, no other reason has been attributed by the court concerned after assigning any other good reason for summoning the applicants as accused.
[13] Per contra, Sri S.D. Jadaun, learned counsel for the opposite party no.2 has filed counter affidavit sworn by none other than Smt. Sunita Tiwari herself. In the counter affidavit, answering respondents has seriously disputed the contents of paragraph no.4 of the affidavit. In paragraph no.6 of the counter affidavit, much emphasis has been laid upon the injury report of Anurag Krishan(Devar of opposite party no.2) who has allegedly sustained the fire arm injury. In this paragraph, number of lame excuses were extended for not lodging case crime no.300A of 2007 within time. In paragraph no.8 of the counter affidavit, strange averment has been made, that case crime no.300 of 2007 and present case are related to same incident and the applicants have succeeded in lodging their FIR against husband of opposite party no.2 and other family members on account of his political approach. Besides this, there is not even reference that the applicants have got long criminal history to their credit.
[14] Learned counsel for the applicants has drawn the attention of the Court with regard to time and date of incident of both the cases is 18.11.2007. In case crime no.300 of 2007 is at 1:30 p.m. whereas time and date of incident in case crime no.300A of 2007 is at 2:00 p.m. in the day. There is a difference of only half hour between these two incidents but there are two different places of incident. In case crime no.300 of 2007, place of incident is in front of shop of Hari Kishan Tiwari, Quota dealer whereas in the instant complaint case, place of incident is residence of complaint village chapauli. Secondly in paragraph no.2 of the complaint, it has been mentioned that on the date and time of the incident, all the accused persons armed with rifle, gun, tamancha, kanta, bhala barged into the house of applicants. They started firing by their respective fire arms and looted Rs.9,000/- from the coffers of Mithelesh Kumar and various jewellery and ornaments including golden chain, finger rings, silver ornaments etc. During this transaction, it is allged in paragraph no.3 that since, accused persons were assaulted upon indiscriminately, therefore, deceased Ram Das Pathak has sustained gun shot injury from his own persons and Anurag Krishna has also sustained injuries. In this firing, informant's family members has also sustained gun shot injury. In paragraph no.6 of the complaint, it has been mentioned that investigation of case crime no.300A of 2007 was transmitted to C.B.C.I.D who after holding indepth investigation, has submitted final report which was eventually accepted by learned Additional Sessions Judge/Special Judge, D.A.A, Auraiya. After misreading orders of this Court dated 05.07.2011, whereby application under section 482 Cr.P.C. preferred by opposite party no.2 was rejected after making a tangent remark regarding filing of the complaint case. Opposite party no.2 has taken it as "direction" to file complaint case and accordingly, present complaint case was filed.
[15] I have perused the impugned summoning order dated 15.02.2013 as well as the injury report of Anurag Krishna, an alleged injured from the side of complainant of which learned counsel for opposite party no.2 has laid much emphasis. This injury report is of 23.11.2007 issued/procured from one doctor of Unnao and after observing singular injury over his person that too on the right side of the leg. The doctor concerned has opined, that duration of the injury is three days back. If it is computed then, these injuries sustained by alleged injured Anurag Krishna would come around 20.11.2007, whereas the incident is of 18.11.2007. Therefore, there is no parallel between the incident and the injuries sustained by Anurag.
[16] It is lastly argued by learned counsel for the applicants that in paragraph no.2 of the complaint, it has been alleged that assailants were armed with rifal, bhala, kanta, tamancha but Smt. Sunita Tiwari in her statement under section 200 Cr.P.C., has specified that Sunil was carrying rifal and Pawan was having gun only. Rest of the persons were unarmed who barged into the house. There is marked deviaton and shift from the prosecution story and the eye witness account given by Ms. Sunita Tiwari-opposite party no.2. A perusal of the impugned summoning order dated 15.02.2013 clearly shows that names as mentioned above i.e. Shakuntla Devi and Shanti Devi have been dropped and it seems that learned Additional Sessions Judge was got extra conscious of the fact that the applicants are having criminal antecendents and therefore, they might have committed this offence. Though, there is no concrete or confidence generating material on record to indict the applicants in commission of present offence. Without bothering the fact that there is no recovery of any incriminating material or looted article, just because that the applicants have got criminal antecedent, has summoned the applicants in perfunctory manner.
[17] In the summoning order, learned court concerned has narrated the material available on record and other facts but no prima facie satisfaction has been recorded to summon the applicants under section 395 IPC. In fact, it is non-speaking order without any application of judicial mind without recording prima facie satisfaction. The criminal antecedent of accused/applicants do carries weigth but solely on that ground, they cannot be summoned unless, prima facie satisfaction is not on record showing the complicity of the accused in commission of the present offence and proximity to commit the offence. At this juncture, learned counsel for the applicants targetted the impugned summoning order passed by learned Special Judge, D.A.A. Auraiya is in the stark contrast with the consistent stand of Hon'ble the Apex Court in this regard viz (i) Vijay Dhanuka etc. Vs. Naijma Mamtaz (2014) 14 SCC 638 ;(ii) Abhijit Pawar Vs. Hemant Madhukar Nimbalkar and others (2017) 3 SCC 528 ;(iii) Mehmood Ul Rehman and others Vs. Khazir Mohd. Tunda and others AIR 2015 SC 2195 whereby Hon'ble the Apex Court has casted an obligation upon learned Judge that steps taken by the Magistrate under section 190(1)(a) of Cr.P.C. followed by Section 204 Cr.P.C. should reflect that Magistrate has applied his mind to the facts and statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged to appear before the Court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence and when considered along with the statement recorded would prima facie make the accused answerable before the Court. In other words, the Magistrate is not to act as post office as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that allegations in the complaint constitute an offence, when it is considered along with statements recorded. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under section 190/204 Cr.P.C., the High Court must quash such orders in exercise of powers under section 482 Cr.P.C. Para 23 of Mehmood Ul Rehman and others (supra) is quoted hereinunder :-
"Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasons orders are required at the stage of Section 194/204 Cr.P.C., there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 Cr.P.C. so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about about veracity of allegations' but whether the respondent are answerable at all before the criminal court. There is no indication in that regard in the order passed by learned Magistrate"
The court concern has not taken into account the abovementioned glaring discrepancies while forming the prima facie opinion against the applicants. It seems that this subsequent complaint case has been lodged just to counter the cold blooded murder of late Ram Das in which husband of opposite party no.2 and other named accused persons are facing prosecution. Learned counsel has enumerated the statements of complaint and witness and documents in support of their case including the criminal antecedents of the applicants.
I am of the considered opinion that the criminal history of any accused applicants do carry weight but on this ground alone, the applicants cannot be summoned. Moreover, there is mark difference and deviation in the averments of complaint and statements of complainant put a serious question mark to the authencity and genesis of the criminal case against the applicants. The injury report of the alleged injured too seems to be a procured document. All these factors cumulatively shakes confidence of this court at the threshold stage. But ignoring all these aspects of the issue, learned Special Judge(D.A.A.) Auraiya for the strange reasons has hold that prima facie case is made out against the applicants. But to my mind, the order impugned is tangent to the established norms set up by this Court as well as by Hon'ble Apex Court in this regard and deserves to be set-aside at this stage alone.
[18] To buttress his contention, learned counsel for the applicants has relied upon few other judgments of this Court in the case of Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB). Paragraph No. 12 of the said judgement is relevant for the controversy in hand and is accordingly reproduced herein under :
"(12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law."
[19] Learned counsel for the applicants has also relied upon the judgement of this Court in the case of Smt. Shiv Kumar and others vs. State of U.P. and another, reported in 2017 (2) JIC, 589, (All) (LB). Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is as under:-
"Learned Magistrate was required to atleast mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr. P. C."
[20] Reference may also be made to the judgement of this Court in the case of Hariram Verma and 4 Others Vs. State of U.P. and Another, reported in 2017 (99) ALL CC 104, wherein the following observations has been made in paragraphs 8 :-
"8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law.
[21] In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
[22] For the foregoing reasons spelled out in paragraph nos.15, 16 and 17 of the judgment, I am of the considered opinion that the impugned summoning order is a non-speaking order, abrupt without any cogent reasons and connecting the applicants in commission of the alleged offence. The learned trial Judge has miserably failed to assess the materials on record in its correct prospective. He seems overawed by criminal antecedent of few of the applicants and jumped into conclusion that these applicants are prima facie involve in the commission of alleged offence under section 395 IPC.
[23] Accordingly, the present application stands allowed and impugned summoning order dated 15.02.2013 and all the subsequent proceedings is hereby set-aside for the reasons mentioned above.
APPLICATION U/S 482 No. - 41464 of 2013 (Smt. Mithlesh Kumari Vs. State of U.P. and another) [1] Smt. Mithlesh Kumari, wife of late Krishna Babu Tiwari and mother of Pintu@Praduman Tiwari, prime accused of Case Crime No.300 of 2007 has filed the present 482 Cr.P.C. application with the following prayer :-
(a) Quashing the order dated 26.06.2013 passed by the Additional Sessions Judge/Special Judge, D.A.A. Auraiya in S.T. No.53 of 2012, "State Vs. Mithlesh Kumari" arising out of case crime no.300 of 2007 under sections 147, 148, 149, 302, 307 IPC, Police Station-Dibiyapur, District-Auraiya ;
(b) Stay the further proceeding of S.T. No.53 of 2012, "State Vs. Mithlesh Kumari" pending in the court of Additional Sessions Judge/Special Judge, D.A.A. Auraiya arising out of the same case crime number.
[2] I have keenly perused the order impugned dated 26.06.2013 passed by Additional Sessions Judge/Special Judge, D.A.A. Auraiya whereby learned trial Judge after hearing the parties, has held that S.T. No.53 of 2012 and S.T. No. 52 of 2011 are the cross-case and it is expedient in the interest of justice that both the cases should be heard and decided but it is not feasible or expedient to record the evidence on the same date, and therefore, proceedings cannot be stayed.
[3] Aggrieved by this order, Smt. Mithlesh Kumar(applicant) preferred the present 482 Cr.P.C. application and this Court on 19.11.2013 directed to list this case along with Application U/S 482 No.12176 of 2013 and has stayed the proceeding of S.T. no.53 of 2012 arising out of case crime no.300 of 2007 under sections 147, 148, 149, 302, 307 IPC, Police Station-Dibiyapur, District-Auraiya pending in the court of Additional Sessions Judge/Special Judge, D.A.A. Auraiya.
[4] After hearing the parties, I, in the earlier part of the judgment have allowed in Application U/S 482 No.12176 of 2013 while quashing the summoning order dated 15.02.2013 in complaint case no.52 of 2011 and thus as natural corollary, the entire castle goes to shambles. The entire sessions trial arising out of complaint case would be in nullity and the proceeding arising out of case crime no.300 of 2007 in S.T. No.53 of 2012 under sections 147, 148, 149, 302, 307 IPC pending in the court concerned shall proceed unabated.
[5] Under the changed circumstances, when the impugned order dated 15.02.2013 arising from complaint case no.52 of 2011 initiated by Smt. Sunita Tiwari has already been quashed, as a natural outcome, court concerned is absolutely free to proceed with sessions trial arising out of case crime no.300 of 2007 and S.T. No.53 of 2012, State VS. Mithilesh and others, under sections 147, 148, 149, 302, 307 IPC and conclude the same as expeditiously as possible.
[6] The present application stands rejected. Interim order granted on 19.11.2013 is hereby discharged.
Order Date :- 5.3.2020 Sumit S/M. Kumar