Allahabad High Court
Bindu And 3 Others vs State Of U.P. And Another on 10 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 13.01.2023 Delivered on 10.04.2023 Court No. - 53 Case :- APPLICATION U/S 482 No. - 21174 of 2022 Applicant :- Bindu and 3 others Opposite Party :- State of U.P. and another Counsel for Applicant :- Madhaw Prasad Counsel for Opposite Party :- G.A.,Rajnish Shukla Hon'ble Umesh Chandra Sharma,J.
1. Heard Sri Madhaw Prasad, learned counsel for the applicants, Sri Rajnish Shukla, learned counsel for opposite party no.2 and perused the record.
2. This application under Section 482 CrPC has been moved to quash the entire proceedings of Criminal Case No.124217 of 2021 (State Vs. Bindu Chaudhary and others) arising out of Case Crime No.77 of 2021, under Sections 323, 504, 308 IPC, Police Station Compierganj, District Gorakhpur pending in the Court of Judicial Magistrate-III, Gorakhpur as well as charge sheet dated 08.08.2021 and also NBW dated 05.04.2022 issued against applicant no.1.
3. In brief, facts of the case are that opposite party no.2, Sanjay Kumar lodged an NCR on 01.04.2021 about the incident dated 09.03.2021 that on account of old enmity applicants accused had beaten him by lathi-danda and caused several injuries to him. He was medically examined on the same day at 11:40 a.m. in which the doctor found three injuries of complaint of pain and one injury of lacerated wound on the top of head, 12 cm above of left ear which was kept in observation.
4. A CT scan was done of opposite party no.2 in which hemorrhagic contusion was seen in left high frontal region and fracture of outer table of left frontal bone was also seen. Finally head injury was concluded and thereafter the present FIR has been lodged under Sections 323, 504, 308 IPC. The bail application of applicant nos.2 to 4 had been rejected by the Additional Sessions Judge, Court No.2, Gorakhpur. After investigation charge sheet has been submitted in the aforesaid sections in which applicant nos.2 to 4 appeared and summon was issued for presence of applicant no.1.
5. By way of this petition the applicants have sought aforementioned remedy and have taken ground that applicant no.1 has also lodged an NCR No.105 of 2021, under Sections 323, 504 IPC in the concerned police station on 09.03.2021 at 12:38 p.m. against the villagers but not against opposite party no.2. The allegations therein are that due to old enmity, he was abused, beaten with lathi-danda whereby he received much injuries on his body. The applicants and opposite party no.2 had been arrested by the concerned police station under Sections 151, 107, 116 CrPC on 09.03.2021 at 02:50 p.m. and the concerned police submitted challani report dated 09.03.2021 in Criminal Case No.1736 of 2021 (State Vs. Bindu Kumar and others) and in Case No.17371 of 2021 (State Vs. Sanjay Kumar and others) pending in the Court of SDM, Campierganj, Gorakhpur, under Sections 107, 116, 151 CrPC which are still pending. In the reports it is stated that no incident happened on 09.03.2021 and only on apprehension of the incident police had arrested them.
6. Opposite party no.2 has been medically examined by the CMO and CT scan of head has been done on 12.03.2021 without mentioning any time. On the basis of injury report and CT scan report Section 308 IPC has been added to the NCR No.104 of 2021 and the NCR has been converted into FIR No.77 of 2021, under Sections 323, 504 and 308 IPC on 22.03.2022 without showing the place of occurrence.
7. The courts below have rejected the bail applications seeing the injury report. Both the reports (challani and injury) contradict each other and prove that the case is false and abuse of process of the court. It is impossible to write the application by opposite party no.2 having such injury as brain haemorrhage and he was arrested in connection of Sections 107, 116 and 151 CrPC. The investigating officer has recorded the statement of opposite party no.2 on 01.04.2021 and evidence of two witnesses Basmati and Kishlawati on 20.04.2021. The witnesses have not disclosed the place of occurrence. The investigating officer has prepared the site plan on 22.03.2021 which is false and fabricated. The investigating officer has recovered a lathi from applicant no.4, Ranjeet after three months later of the incident on 11.06.2021. The recovery is false because there is no bush around the applicant's house and the recovered lathi is unknown to the applicant no.4. The I.O. has submitted the false charge sheet based on imaginary story. NBW has been issued against applicant no.1, Bindu and all the applicants are facing trial. After submission of charge sheet cognizance has been taken and NBW has been issued against him
8. First of all, opposite party no.2 forced the applicants to not press the civil suit no.297 of 2021 (Jairam and others Vs. Sanjay Kumar and others) pending in the court of Civil Judge (Junior Division)-III, Gorakhpur but when he failed, he wanted to compromise the civil suit but when he again failed then he lodged this false NCR/FIR. There is delay of 13 days in lodging the FIR. As per challani report no incident has taken place on 09.03.2021. Two proceedings cannot ran for the same offence. One in the Court of SDM and another in the Court of Judicial Magistrate and it is in violation of Article 20(2) of the Constitution of India. Hence, the entire proceedings be quashed.
9. By way of supplementary affidavit it has been clarified that the name of applicant no.4 is "Ranjeet" not "Ramjeet".
10. Counter affidavit dated 14.09.2022 has been filed by opposite party no.2 denying the averments and allegations of the instant petition and has been averred that NCR has been converted into FIR after medical report. Witnesses have supported the prosecution version. It is also supported by the medical report and thereafter charge sheet has been filed. The application is devoid of merit and is liable to be dismissed.
11. Applicants have filed a rejoinder affidavit dated 19.09.2022 denying the averments of counter affidavit and affirming the averments of this petition.
12. Heard and perused the record.
13. From perusal of the record it transpires that the applicants have taken following grounds:
(i) Opposite party no.2 has falsely implicated the applicants for pressurizing to enter into compromise in respect of Civil Suit No.297 of 2021.
(ii) Neither in the FIR nor in the evidence of the witnesses there is any averment or evidence regarding place of occurrence.
(iii) If opposite party no.2 was so injured, it was not possible for him to write the complaint.
(iv) As per proceedings under Sections 107, 116, 151 CrPC there was no injury to opposite party no.2. Hence, in view of that also the version of opposite party no.2, evidence and medical report are false and fabricated.
(v) There is undue delay in lodging the FIR.
14. This application would be decided as under.
15(i). There is no previous version or evidence that opposite party no.2 has ever pressurized the applicants to compromise the civil case even in his NCR it has not been written that on the pretext of compromise opposite party no.2 and other accused persons attacked upon applicant no.1 and caused severe injuries. In his NCR a similar name Sanju son of Hari Ram has been mentioned as one of the accused. Here opposite party no.2 is Sanjay Kumar son of Sriram. However, from the NCR lodged by applicant no.1 it has been established that on 09.03.2021 at about 09:00 a.m. the incident had taken place as alleged by opposite party no.2. Hence, at this stage it cannot be concluded that opposite party no.2 was pressurizing applicant no.1 for compromising the civil suit.
16(ii). Certainly in the NCR lodged by opposite party no.2 no place of occurrence has been mentioned but from its perusal it is very much clear that the incident had taken place in the concerned village. It is also true that after conversion of NCR into FIR there is no reference of place of occurrence in FIR. However, on the pointing of applicants, site plan has been prepared by the I.O. where the place of occurrence has been shown to be the patta land of opposite party no.2, Sanjay. An FIR is not an encyclopedia. It is only a mode to accelerate the police machinery to come into motion. If place of occurrence, name of the witnesses or even some accused persons have been left, the same is not fatal for the prosecution. Hence, this argument is also rejected.
17(iii). The next argument of the applicants is that if opposite party no.2 was so injured how he wrote the complaint. According to this Court, there is no evidence that at the time of writing NCR/FIR opposite party no.2 was bed ridden or was unable to write complaint himself. Some patients remain mobile even during the course of treatment. It is not the case of prosecution that opposite party no.2 was bed ridden or unconscious or his hand was so badly injured that he was unable to write the complaint. Hence, this argument is also rejected.
18(iv). So far as the fourth argument is concerned it is very much clear from the report of SI Bismillah Khan that both the parties were adamant to fight with each other and were not ready to keep calm and were adamant to kill each other and also threatened to see in future. There was apprehension of commission of cognizable offence hence Bindu, Ranjeet and Sujeet from the applicants side and Sanjay and Jitendra Kumar from the side of opposite party no.2 were booked under Section 151 CrPC on 09.03.2021 at about 02:50 p.m.
19. Generally it is seen that police avoids lodging the NCR/FIR to avoid increasement of crime numbers of their police station. Therefore, they do not like to register the case under the Indian Penal Code. If opposite party no.2 taken in police station and he was medically examined on 12.03.2021, certainly he would be in police custody if he would not have been released on bail. Challani under Sections 107, 116 and 151 CrPC is not the basis to judge the credibility of the fact that opposite party no.2 was not beaten by the applicants because in due course of business he has been examined in District Hospital, Gorakhpur and has also undergone to CT scan in which the aforesaid injury has been found. At this juncture only on the basis of challani report under Sections 107, 116 and 151 CrPC it cannot be concluded that the injury, the CT scan report, conversion of NCR into FIR and after due investigation submission of charge sheet and taking cognizance by the concerned Magistrate, all are false and forged and without any basis.
20. Opposite party no.2 has filed the statement of Dr. Vijay Kumar, Radiologist in which he has stated that he found head injury as described above in CT scan. He has confirmed his signature on the report. On the basis of above discussion this argument of counsel for the applicants is also rejected.
21(v). Certainly there is delay in lodging the FIR but it appears that since proceedings under Sections 107, 116 and 151 CrPC had been initiated by the concerned police and opposite party no.2 would have been busy in his treatment and getting the legal recourse in respect of Sections 107, 116 and 151 CrPC hence mere delay in lodging the FIR is not the sole ground to quash the case of prosecution. Hence, this argument is also rejected.
22. On the basis of above discussion this Court is of the view that there is no material substance in the argument of the applicants. After lodging the FIR, the I.O. has submitted the charge sheet under Sections 323, 504 and 308 IPC. The witnesses have supported the prosecution version which has also been corroborated by the medical evidence. On the one hand where the police is not showing any injury to either of the parties even to applicant no.1, Bindu also, on the other hand applicant no.1, Bindu himself accepts that injuries had been caused to him and the I.O. of the concerned police station is admitting that an attempt to cause homicidal death has been committed by the applicants.
23. Criminal proceedings, charge sheet and the cognizance order cannot be cancelled lightly and inherent power under Section 482 CrPC cannot be exercised if Court does not find that the charge-sheet and the entire criminal proceeding is the abuse of process of Court or there is any need to secure the ends of justice or there is any necessity to give effect to any order under the Code by implication of Section 482 CrPC.
24. The present petition under Section 482 CrPC is devoid of merit. Justice requires complete trial of the matter to ascertain the truth. Hence, the present petition is dismissed.
Order Date :- 10.4.2023 Shahroz (Umesh Chandra Sharma,J.)