Allahabad High Court
Ram Dhiraj And 7 Others vs State Of U.P.And Another on 26 July, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
AFR Reserved Court No. - 10 Case :- U/S 482/378/407 No. - 967 of 2007 Petitioner :- Ram Dhiraj And 7 Others Respondent :- State Of U.P.And Another Petitioner Counsel :- Manoj Kr. Misra Respondent Counsel :- Govt.Advocate Hon'ble Yogendra Kumar Sangal,J.
This application under Section 482 CrPC was filed by the applicants-petitioners to quash the proceedings of complaint case No. 309/2006 Raja Ram vs. Jaideep Dubey under Sections 392, 452, 323, 504, 506 IPC relating to P.S. Chapia, District Gonda along with order of summoning the accused applicants dated 28.04.2006 passed by learned C.J.M., Gonda.
Heard learned counsel for the applicants-petitioner, learned AGA for the State and perused the record.
An application under Section 156 sub-clause (3) CrPC was moved by the respondent No. 2 before the learned Magistrate for the direction to the police to register the case and to investigation in the matter, but the same was treated as complaint by the learned Magistrate. After recording the statements under Section 200 and 202 CrPC and hearing the counsel for the complainant by the order dated 28.04.2006 learned Magistrate find prima-facie case and sufficient ground against the accused and summoned the accused to face the trial for the aforesaid offences. Aggrieved by this order, this petition has been filed.
As per application case under Section 156 sub-clause (3) CrPC / complaint case on 19.07.2005 at 6:00 P.M. on the direction of Local M.L.A., the petitioner-applicant No. 7 and 8 Jaideep and Anil Tiwari who are police persons reached in the village of the complainant and badly abused to the complainant and his family members and instigated Ramdhiraj etc. to rob the complainant's property. On his instigation rest of the accused persons named in the complaint have also started to abuse the complainant and his family members. When they were asked not to do so, they started beating to them. Seeing the attack of all the accused on him, complainant with his family members to save themselves entered into the house where accused persona have followed them and entered in the house and beaten them. On their alarm, villagers and locallity persons assembled there but due to presence and interference of the police persons nobody came forward to save them. Accused persons have taken away the radio set and C.D. from in the house. To save themselves Choki Incharge Jaideep Dubey manipulated a case and arrested the nephew of the complainant and present him at the police station where he was badly beaten and challaned under Section 107/16 CrPC. When the police was informed by the complainant, he was threatened and forced to go from there otherwise he will be involved him in Gangster Act case and his report was not entered. He and his family members got medically examined themselves and informed Superintendent of Police but as no action was taken so application under Section 156 sub-clause (3) CrPC was moved which was registered as complaint case.
Complainant examined himself under Section 200 CrPC and also produced witnesses Raja Ram and Jayanti Prasad under Section 202 CrPC to support his case and after going through their statements and from record, learned Magistrate passed the impugned order for summoning the accused for their trial.
Record shows that earlier an application was moved on behalf of the accused applicants before the same court of learned Magistrate to recall the order of summoning but the same was rejected by the learned Magistrate saying that he has no power to review its order in the light of law laid down by the Hon'ble Apex Court in Adalat Prasad vs. Roop Lal reported in (2004) 7 SCC 338. A revision was also filed on behalf of the accused applicant for setting aside the summoning order but the same was dismissed by the learned Session Judge vide order dated 06.01.2007.
Record shows that in support of the facts contained in the complaint, complainant had examined himself and narrated the case of the complaint in his own statement. His on oath version was supported by two witnesses Rajaram and Jayanti Prasad. It is also mentioned in the complaint that complainant and his family members have received injuries and they got medically examined themselves and after going through the record, seeing sufficient ground in the matter, learned Magistrate has summoned the accused persons to face the trial. Copy of injury report filed on behalf of complainant alongwith complaint not filed with petition and it also no where said that no injury was received by any of the victim in the occurrence. Out of 12 accused in the complaint who were summoned to face the trial, only 8 of them have challenged the summoning order and proceedings of the complaint case, one of the ground is that applicants No. 7 and 8 are police persons. They reached their after receiving the information of apprehension of breach of peace on the spot and when they found as such on the spot, they arrested one Deep Chand and challenged him under Section 151 CrPC and 107/16 CrPC. They were there in discharging their official duty. To prosecute them a sanction under Section 197 CrPC is required. It was further argued on their behalf that no offence under Section 392 CrPC is made out from the evidence available on the record and without applying mind to the facts and circumstances of the case, learned C.J.M. had passed the impugned order in mechanical way. No date of occurrence was stated either by the complainant or by the witness Raja Ram in his statement under Section 200 and 202 CrPC. Jayanti Prasad is not the locality witness. He related to the complainant and he is resident of district Basti. His presence on the spot is doubtful. Complainant himself is a notorious person. He blocked the common passage by putting fancing of throne and the movement of the applicants was obstructed and they were even not in a position to go beyond the fancing to meet out the call of nature. When they informed the misdeed of the complainant to the police and police reached on the spot and action was taken by manipulating false story this compliant has been filed.
It is established law that in the complaint case matter that at the initial stage of Section 203 and 204 CrPC only prima-facie case is to be seen whether there is sufficient ground to proceed against the accused persons or not. At this stage the statement of the witnesses recorded under Section 200 and 202 CrPC are not to be scrutinized in such a way that their statements are being seen for the purpose of the conviction or acquittal of the accused persons. In 1982 CrLJ 629 (SC) Khacheru Singh vs. State, the Hon'ble Apex Court had laid down that when Magistrate issue sommons to the accused persons after seeing the prima-facie case in the matter and Session Judge has quashed order in revision and also High Court affirmed the order of Session Judge. It was held that learned Session Judge and High Court were not at right footing. It was further held by the Hon'ble Apex Court that if eventually Magistrate come to conclusion that no offence was made out against the accused he himself was in a position to discharge or acquit the accused as the case may be and the order of High Court and Session Judge were set aside. In another case in AIR 1972 SC 2649 Nirmal Jeet vs. State, Hon'ble Apex Court held that sufficient ground under Section 203 CrPC do not mean sufficient ground for conviction. Even though the persons charged of an offence in the complaint might have a defence the matter be left to be decided by the appropriate forum at appropriate stage and issue of the process could not be refused.
Hon'ble Apex Court in the case reported in 2002 CrLJ 3780 Raj Kishore vs. State, held where a complaint filed against the police persons by an accused that he has been falsely implicated in a case under Section 25 Arms Act question was raised on behalf of the police persons that they cannot be summoned without a sanction under Section 197 CrPC. In such case whether the accused officer had acted in official course of duty or not and whether there sanction is necessary or not should be left open to be decided in the main judgment after trial.
In the present case similar question was raised on behalf of the accused-petitioners No. 6 and 7 that they have gone there in discharge of their official duty when they received the information that apprehension of breach of peace is there and they found as such on the spot, so they have arrested one accused under Section 151 CrPC and challaned him under Section 107/16 CrPC, hence without any sanction under Section 197 CrPC, they cannot be prosecuted as in the present case. As per complainant version when these police persons reached on the spot they have instigated other accused to rob the informant etc. and on their instigation rest accused persons have beaten the complainant and his family members. They received injuries which were medically examined by the doctor and accused persons have also taken away the radio set and C.D. from his house. If it was so, it cannot be said that these acts were done by these two accused-petitioners police persons in discharge of their official duty. Oral and documentary evidence is required in the matter to decide this disputed fact that they acted as such or not and these acts of the police officials can be said to be done in discharge of their official duty. This argument will also be available to the accused persons at the time of framing the charge after evidence under Section 244 CrPC and also at the final stage of the case as held by the Hon'ble Apex Court as above.
Learned counsel for the applicant-petitioners also argued that from the facts and record of the case no case under Section 392 IPC is made out. Accused persons will be free to raise this argument before the trial court at the time of framing the charge and trial court will see whether case under Section 392 IPC or under Section 382 IPC or in which section of IPC is made out. Hence, at this stage petitioners are not entitled for any relief on this account also.
Another argument raised on behalf of the petitioners is that in statements under Section 200 and 202 CrPC neither complainant nor his witness Raja Ram has given date of the occurrence. This is minor discrepancy in the evidence. They both have stated that 7 or 8 months before this occurrence has taken place which corresponds to the date and time of the occurrence. Moreover, another witness Jayanti Prasad has given date of the occurrence in his oath statement. This date is also clear from the facts narrated in the complaint. It was further argued on behalf of the petitioners that this Jayanti Prasad is related to the complainant and not the locality witness. He resides in District Basti. He can be said were chance witness. It is held by Hon'ble Apex Court in this regard in Nirmal Singh's case referred above that sufficient ground to be seen at this stage of the case under Section 203 CrPC, it do not mean sufficient ground for conviction. What is the value of statement of Jayanti Prasad when examined in trial, it will be seen at final stage of case. Another argument was raised that trial court in impugned order has wrongly mentioned the date of occurrence as 18 in place of 19. This shows that mind was not applied by the trial court to the facts of the case mentioned in the complaint. This type of mistake can be taken as clerical/typing mistake and cannot be given much importance at this stage of the case.
On behalf of the accused a defence case was brought up on record through the facts detailed in the petition but definitely it is a defence case of the accused persons. As law laid down by the Hon'ble Apex Court in Nirmal Jeet's case referred above, this matter of defence case is to be left to be decided by the court concerned at appropriate stage of the case and issue of process cannot be refused on this ground.
Accused persons have moved an application/protest petition to get reviewed the order of summoning but this application was rightly rejected by the trial court and they were directed to appear before the court on 11.01.2007 and to move application to get released them on bail but record shows that they have not complied the order of the trial court till 03.04.2007 when this petition was filed before this Court. Record also shows that in the meantime they have challenged the order of summoning before the revisional court also but the same was dismissed on 06.01.2007. Among the accused-petitioners there are two police persons. They are Government servant and literate and law knowing persons. Although it was necessary for all the accused to comply this order of trial court to appear before him but at least from these police persons out of them one (is of Sub-Inspector rank), it was expected that they should comply the order of the court and also to say other accused persons for compliance of the order of the court but with no reason, they have not complied the order for more than 3 months. This act of the accused persons cannot be said bonafide one. They are disobeying the order of the court and trying to avoid their presence in the Court on one pretext or the other and they are not coming with clean hands before this Court and also they are delaying the proceedings in the trial court unnecessarily.
From the above discussions and in the facts and circumstances of the case and also considering the argument of parties, I am of the view that no interference is required in the matter by this Court in the impugned order passed by the trial court and as accused- petitioners are misusing the process of the court and also unnecessarily delaying the disposal of the matter before the trial court and they are disobeying the courts order, they are liable to pay the costs also and petition is liable to be dismissed.
Accordingly, petition under Section 482 CrPC is hereby dismissed. Petitioners-applicants shall deposit Rs. 15,000/- as costs within two months with the Registrar of the Court to be deposited in Mediation Centre of this Court. If the amount not deposited within the prescribed period by the accused petitioners, the same shall be recovered as arrears of the land revenue from them by D.M., Lucknow. Registrar of the Court will see the compliance of the order of the Court.
Order Date :- 26.7.2010 Rakesh/-