Allahabad High Court
Krashnkant And 5 Ors vs State Of U.P. And Anr on 3 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1128, 2019 (109) ACC (SOC) 110 (ALL) (2019) 2 ALLCRIR 1944, (2019) 2 ALLCRIR 1944
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 73 Case :- APPLICATION U/S 482 No. - 22648 of 2019 Applicant :- Krashnkant And 5 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ganga Bhushan Mishra Counsel for Opposite Party :- G.A.,Ruchita,Ruchita Jain Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Shri I.K. Chaturvedi, Senior Advocate assisted by Shri Ganga Bhushan Mishra, learned counsel for the applicants, Shri Pratap Kanchan Singh, learned counsel for the complainant and learned A.G.A. for the State.
2. This application has been filed under section 482 Cr.PC seeking quashing of summoning order dated 29.03.2019 passed in Criminal Complaint No. 2320 of 2018 (Tika Ram Vs. Krashna Kant and others), by learned CJM, Jhansi, under section 147, 148, 302, 352 IPC, P.S. Lahchura, District Jhansi as well as entire proceedings of the aforesaid complaint case including the order dated 21.07.2018, passed by learned CJM, Jhansi, whereby the learned Magistrate after rejecting the final report submitted in the case crime No. 0056 of 2018, under section, 147, 148, 302, 352 IPC, P.S. Lahchura, District Jhansi, treated the Protest Petition of the opposite party no. 2 as a complaint.
3. According to the FIR, the alleged incident took place on 9/10.04.2018 at about 1 a.m. in the night and opposite party no. 2 lodged FIR which was registered as crime no. 0056 of 2018, under sections 147, 148, 302, 352 IPC. In the FIR it was alleged that opposite party no. 2 and his wife with his son Lal Singh were present at their agricultural field for crop harvesting in the night, thereafter, Lal Singh proceeded to his house and when he arrived near his house at about 1 a.m., suddenly the named accused persons who were armed with Lathi and country made pistol, made an assault upon him. Upon hearing his voice, younger son Ram Kumar and his wife and wife of Lal Singh came out side the door and saw that the accused persons were armed with lathi and country made pistol and after challenging the accused persons, they escaped from the spot, after committing scuffle with his son. Thereafter, his son Ram Kumar picked up Lal Singh and informed him. The police was called and thereafter he came to police station with injured son on Maruti van. The police took his injured son to hospital at Mauranipur from where he was referred to District Hospital, Jhansi. On the way his son expired in the vicinity of the village Sakrak. It was further alleged in the FIR that there was old enmity going on with the accused and that is why his son was murdered by them. The matter was investigated by police and after concluding investigation a final report dated 17.04.2018 was submitted to the court, in which it was also requested that a proceedings should be initiated under section 182 IPC against the informant.
4. Aggrieved by the final report opposite party no. 2 filed protest petition on 14.05.2018 on which the court passed an order on 21.07.2018, rejecting the final report and directing to register the protest petition of informant as complaint and complainant was directed to produce the witnesses. Thereafter the statement under section 200 Cr.PC of the informant and the statement of the witnesses under section 202 Cr.P.C. was recorded by the court and passed the impugned summoning order.
5. Aggrieved by the summoning order, this application has been filed, submitting that the impugned order was passed ignoring the police papers on record and only relying on the witnesses examined in support of the complaint. It is clear that the injuries found on the body of the deceased was on one side of his body. The impugned order has been passed on the ocular account of C.W.-1 and C.W.-3, but they have not stated that they have seen the accused persons committing scuffle. The applicants has been summoned without assigning the reason and no specific role has been assigned to any of the applicants and only on the general allegations, the impugned order was passed.
6. It has been further alleged that the Investigating Officer had indicated that the death of the deceased occurred as he fell from the roof and the injury report of the deceased also indicated same thing The fact alleged and discovered during investigation, creates serious doubt about the occurrence. It is also pertinent to mention that Smt. Kaushlya wife of deceased Lal Singh claimed insurance under Mukhya Mantri Kisan evam Sarvhit Bima Yojana showing accidental death of her husband Lal Singh on 20.12.2018. What happened to that claim is not known to the applicants even if efforts were made to know about it.
7. It has been further alleged that the deceased was drunken and he fell down from the roof in a drunken condition and serious laceration, abrasion and contusion resulted, because of that his death occurred. On this basis the applicants have requested for the quashing of the impugned order and the entire case.
8. On being asked whether any criminal revision has been filed against the impugned summoning order or not, learned counsel for the applicants has submitted that no such criminal revision was filed. It is pertinent to mention that against summoning order, the remedy for criminal revision is provided under Criminal Procedure Code, where equally efficacious remedy is available. It appears strange that this Court has been approached for extra ordinary remedy under section 482 Cr.P.C.
9. It appears from the record that when the final report was filed, protest application was given from the side of informant. It is needless to mention that when final report was given by the police it is incumbent on the part of the court to issue notice to the applicants before passing any order on the final report. When the informant filed the protest application, the legal way of handling the protest petition has no where been flouted by the learned court and when the protest petition was filed, the same was registered as complaint directing the complainant to adduce evidence in his favour. Following the direction of the court, the complainant examined himself and five other witnesses including the Doctor who conducted the postmortem. It has been submitted that the Investigating Officer was not examined. It is needless to point out that the Investigating Officer who has submitted the final report on completion of investigation was not needed to be examined by the complainant, at least at this stage. It is also to be noticed that it was not the choice of the applicant which witness should be examined by the complainant, it is the prerogative of the complainant to examine the witness of his choice, whom he feels that they will going to support the complaint, that is what the complainant has done.
10. The Law with regard to exercise of the power under section 482 Cr.PC. is that, while exercising this power, the Court is not expected to enter into the intricated facts and evidence. If without going into the evidence and fact, a conclusion is possible that there is misuse of the process of the Court, only then the jurisdiction under section 482 Cr.P.C. has to be invoked.
11. In State of Haryana vs Bhajanlal, 1992 SCC (Cri.) 426, the Supreme Court has summarized the extra-ordinary power of the High Court under Article 226 or inherent power under section 482 of the Criminal Procedure Code, which can be exercised to prevent abuse of the process of any court or to secure justice in following cases:
1. Where the allegations in the FIR/complaint, even if taken at their face value do not prima facie constitute any offence against accused.
2. Where the allegations in the FIR/complaint or other materials do not constitute a cognizable offence justifying an investigation by the police except under an order of the Magistrate u/s 155(2) of the Criminal Procedure Code.
3. Where the uncontroverted allegations in the FIR/complaint and the evidence collected do not disclose commission of any offence.
4. Where the allegations in the FIR/complaint constitute only non-cognizable offence to which no investigation is permissible without order of the Magistrate u/s 155(2) of the Criminal Procedure Code.
5. Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground to proceed against the accused.
6. Where there is express legal bar in the Code or in the Statute concerned (under which the proceeding is instituted) to the institution or continuance of the proceedings.
7. Where there is a specific provision in the Code or in the Statute concerned, providing efficacious/alternative remedy for the grievance.
8. Where a criminal proceeding is manifestly attended with mala fide or malicious with ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal vengeance.
9. That it should be exercised very sparingly to prevent abuse of process of court or otherwise to secure the ends of justice and should not be resorted to like remedy of appeal and revision.
10. The high court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.
12. The order has been passed by the learned trial court by making a judicial inquiry as provided under the Criminal Procedure Code and after finding that the prima facie case is being made out, the impugned order has been passed. The applicant will have occasion to put their point of view at the time of framing of charge and at the time of recording of the evidence.
13. On the basis of above discussions, I do not find any good reason for interfering in the impugned order. The application has got no force and therefore, it is liable to be dismissed.
14. The application U/S 482 Cr.P.C. is dismissed accordingly.
15. The learned counsel for the applicants has requested that some protection may be given as the applicants have been summoned in the complaint case.
16. It is directed that if within 30 days from today, the applicants appear before the court and file their bail application, the same shall be disposed of expeditiously preferably on the same day and for these 30 days no coercive measures shall be taken against the applicants.
Order Date :- 3.7.2019 Bhanu (Justice Pradeep Kumar Srivastava)