Allahabad High Court
Raghunath Taliwal vs State Of U.P. & Another on 2 July, 2013
Author: Yogesh Chandra Gupta
Bench: Yogesh Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 22 Case :- APPLICATION U/S 482 No. - 682 of 2002 Applicant :- Raghunath Taliwal Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Amit Misra,Damodar Singh,Jai Shankar Prasad Singh,Rajul Bhargava,Viresh Mishra Counsel for Opposite Party :- Govt. Advocate,A K Shukla,Pankaj Shukla,Pramod Dwivedi,Rajiv Goswami,S.N. Singh Hon'ble Yogesh Chandra Gupta,J.
Heard learned counsel for the applicant, opposite party no. 2, learned AGA and perused the materials on record.
By means of the instant application, the applicant is praying to quash the charge sheet and the entire proceedings drawn thereon of Criminal Case No. 976/IX of 2001 (Crime No. 750 of 1996; State v Vinod Chandra & others) u/s 147, 149, 328, 201 and 120-B IPC, P.S. Kotwali, District Mathura pending in the court of the learned IV-Additional Chief Judicial Magistrate, Mathura.
For the purposes of this application brief facts may be stated thus: that one Sanjay Purohit S/o Ram Avtar Purohit was working as Commission Agent in the firm named; Automatic Crystal Silver, run under the proprietorship of one Vinod Chandra Sharma prior to the occurrence. He was found unconscious on 08.01.1996 in Train No. 118 at Mathura Cantt Station and was deboarded from the said train with the assistance of the Railway Guard of the concerned Train and the local GRP and given in the supardagi of the GRP, Mathura Cantt for sending him to the Hospital for treatment but Sanjay Purohit succumbed to the suspected poisoning in the Hospital on 08.01.1996 midnight. The father of the deceased is alleged to be at Kanpur at the time of the incident.
After about four months of the alleged incident levelling allegations against six persons namely, Vinod Chandra Sharma, Sudhakar S/o of said Vinod Chandra Sharma, Girraj Kishore, Neeraj, Madan Lal Varshney and Raghunath Taliwal (applicant), an FIR was lodged by Ram Avtar Purohit, father of the deceased, wherein it was stated that the aforesaid firm was engaged in manufacturing and supplying chemical namely; Silver Nitrate and Sanjay Purohit (deceased) was employed as Commission Agent to transport Silver Nitrate to different places. It was further alleged that since proprietor and partners of the said firm were involved in illegal activities also, like smuggling Silver Nitrate, the son of the informant, Sanjay Purohit (deceased), was reluctant and preparing to quit the aforesaid job of the said firm any time. That on 08.01.1006 Sudhakar S/o of said Vinod Chandra Sharma, Girraj Kishore, Neeraj, Madan Lal Varshney and Raghunath Taliwal (applicant) wheedled his son Sanjay Purohit (the deceased) for the purposes of sending him to Jaipur along with some ready materials on the assurance that they will get his dues cleared from the firm on his return from Jaipur and managed to administer poison to him, through some noxious substance, due to which the said Sanjay Purohit died. In furtherance of the allegations it was stated in the FIR that as the said Vinod Chandra Sharma, owner of the aforesaid firm, was indulged in illegal business, i.e. smuggling and his misdeeds and illegal activities were unravelled to Sanjay Purohit (the deceased), he was done away with by the other accomplices of Vinod Chandra Sharma, including the present applicant. The matter was investigated and charge sheet was submitted against the aforesaid persons in Case No. 750 of 1996 at P.S. Kotwali, District Mathura, under sections 147, 149, 302, 201, 328 and 120-B IPC, in the court of the learned Chief Judicial Magistrate, who took cognizance of the offence and vide order dated 17.03.2001 summoned the applicant and others to face trial for the aforesaid offence. Hence, the application under section 482 Cr.P.C.
Learned counsel for the applicant submitted that the applicant is not even bleakly concerned with the incident, with the proprietor of the aforesaid firm or with the deceased, who was the son of opposite party no. 2 and alleged to be in the aforesaid firm under the proprietorship of Vinod Chandra Sharma as a Commission Agent. It is further submitted that it is established from the record that the deceased was sent by the said proprietor of the firm to Jaipur and on the way while travelling in train, he was administered some noxious substance by some miscreants, who fled away from the scene with the suitcase of the deceased containing Silver Nitrate worth Rs. 41,000/- when the deceased fell unconscious. Further submission was that it was not in dispute that the deceased was taken to the District Hospital, Mathura in a critical condition, as is apparent from annexure 1 the initial medical report of the deceased, where he was admitted by one Sanjay S/o Mahendra, who was returning from Mathura to Hathras and at the relevant time he happened at the Mathura Railway Station and identified the deceased. On assessing the grim scenario of the critical condition of Sanjay Purohit, he flung into action and accompanied the deceased along with the GRP, Mathura to the District Hospital . It is next submitted that Sanjay S/o Mahendra, also informed the family members of Sanjay Purohit, who also reached at the Hospital but they were not satisfied with the medical treatment being given in the District Hospital, therefore, without informing the Hospital authorities, as per bed head ticket annexure 5 to the application, absconded along with Sanjay Purohit to get him admitted to another Hospital but unfortunately Sanjay Purohit could not be saved and died on the way to another hospital. Thereafter the family members of Sanjay Purohit carried the dead body of the deceased to Hathras and cremated him there on 09.01.1996 at Hathras itself. It is argued that it was a simple case of poisoning by some unknown persons for the purposes of stealing the suitcase of the deceased, which is evident from the conduct of the family members of the deceased as they did not approach the police station nor insisted for the panchayatnaama and post mortem of the dead body at the relevant time. It is further submitted that there is no direct or indirect evidence to link the applicant with the alleged offences and he has been falsely fastened in the case for ulterior motives.
It is contended that the applicant is a reputed businessman and runs his own separate and independent business of Dal Mill in the name and style of M/s Raghunath Dal Mill, Mathura. without any involvement/interference with the business of Vinod Chandra Sharma or his family. In addition to the argument it is also submitted that the said Vinod Chandra Sharma has a very clean image and there had never been any allegation/raid by sales tax/income tax or by any executive authority and the firm transects always a clean and fair business. Learned counsel for the applicant argued that after the death of Sanjay Purohit, his father Ram Avtar Purohit, opposite party no. 2, visited the applicant, who was Pradesh Sangathan Mantri of Vyapar Mandal, Hathras of which co-accused Madan Lal, a reputed Jeweller, Girraj, reputed Kirana merchant, were Secretary and Nagar Mahantri respectively. Ram Autar Purohit asked all of them, being office bearers of Vyapar Mandal, to persuade and influence Vinod Chandra Sharma to pay huge compensation to him. Thereafter on such a request, the applicant and all the said members of Vyapar Mandal contacted Vinod Chandra Sharma for payment of compensation as requested by Ram Awatar Purohit, at which they were informed by the said Vinod Chandra Sharma that sufficient amount of compensation has already been paid to Ram Avtar Sharma as the death took place in discharge of business of the firm and now he (Vinod Chandra Sharma) is not intending to pay any further amount in the shape of compensation to the father of the deceased. As the above said fact was narrated to Ram Avtar Sharma (opposite party no.2), he got infuriated and threatened the applicant and the said office bearers of the Vyapar Mandal to get all of them fastened in fake case. It is further submitted that at the back drop of the above conversations, Ram Avtar Sharma in collusion with his son Sharad Kumar and his friend Bobby alias Girraj, who are known criminals and gangsters hatched a conspiracy and concocted false applications and sent them to all the higher authorities of the country and tried to scandalize the entire issue to extract money and in this shape and design the applicant and different reputed and respectable businessmen of the locality have been falsely implicated in highly, improbable, unnatural and absurd prosecution story just to harass, pressurize and blackmail for his ulterior motives. The ulterior motive of opposite party no. 2 can also be evident with the fact that instead of approaching the Officer Incharge of the concerned Police Station or senior officers of police or taking recourse to the provision of Section 156 (3) Cr.P.C., he made complaints to almost all the higher authorities of the country, including the National Human Rights Commission and thereby got the FIR registered on 01.08.1996 at P.S. Kotwali, Mathura vide case crime no. 750 of 1996, under sections 147, 149, 328, 201 and 120-B IPC (annexure 3 to the application) against the applicant and five others with the most unnatural, improbable and absurd facts, correctness of which can be believed by no prudent person. The said FIR has been lodged with great and inordinate delay without any reasonable cogent reasons explained by opposite party no. 2 and that too astoundingly at Mathura and not at Hathras, where the incident is said to have happened. It is further submitted that the complainant even failed to establish any mens rea against aforesaid persons, who have been trapped in the alleged incident by the complainant, in the FIR. In furtherance of his submission learned counsel for the applicant contended that the applicant had absolutely no connection or link with the said Vinod Chandra Sharma accept casual acquaintances, being members of the business community, nor he had any link or connection with the employees/Commission Agent of Vinod Chandra Sharma.
It is next submitted that on the said FIR, investigation was started by the police, P.S. Kotwali, Mathura. The Investigating Officer after completing his investigation in the matter recorded his conclusion in detail wherein he expressed serious doubts on the correctness of the prosecution story and raised more than two dozen points and was of the view that there was no admissible evidence on which the applicant can be prosecuted and the case could stand and be proceeded any further in the court of law. Accordingly, he submitted his report to his senior officer (annexure 14), which discloses that the Investigating Officer was reluctant to submit charge sheet but since the matter was within the domain of Human Rights Commission, superior officers of Police, being under pressure of the circumstances, transferred the investigation to another Investigating Officer, who submitted charge sheet (Annexure 15 to the application). However, in the charge sheet itself, he has concluded that from the investigation the facts have not been established, however, since the witnesses are giving statements, charge sheet is being submitted.
Learned counsel for the applicant also strengthen his castle of arguments by submitting that the witness Sanjay S/o Mahendra Kumar, who was all through present during the factual developments with the complainant and his family members, never even named the applicant in his statement u/s 161 Cr.P.C., which is well established from Annexure 4 to the affidavit. In the said statement Sanjay did not utter a single word as to who was responsible for missing of the suitcase or administration of poison. Perusal of Annexure 5, copy of Bed Head Ticket to the affidavit and the statements of Dr. Raja Babu Gupta Dr. KG Singh and Smt. Shanti Devi (annexures 6, 8 and 7 respectively to the application) reveal that the deceased was not in a state to mumble a single word to anyone in the Hospital.
It is further submitted by the learned counsel for the applicant that the witness, Sharad Kumar, who is the son of the complainant, is an interested witness having criminal antecedents and against him 10 criminal cases have been registered which is established from annexure 10 to the petition). As against witness, Bobby alias Girraj Kishore, who is a close friend of the said Sharad Kumar is having 6 criminal cases in his count (annexure 11 to the petition), therefore, the statements of the aforesaid witnesses, recorded by the SHO concerned, loose its sanctity. Barring the aforesaid interested witnesses, there is no independent witness to support the prosecution story. Thus, the evidence collected in support of the prosecution story does not disclose commission of any offence and does not make out a case against the present applicant. Thus the entire prosecution story is based on fraudulent misrepresentations and is wholly untrue. Learned counsel for the applicant further submitted that continuance of proceedings against the present applicant is nothing but a gross abuse of the process of law and the court. It was lastly submitted that in the aforesaid backdrop of the facts and evidence on record the impugned order passed by the court concerned is bad in law and is liable to be quashed.
Per contra, it is submitted by the learned counsel for opposite party no. 2 that the concerned police investigated the case and recorded statements of the witnesses and had rightly filed charge sheet before the concerned court, therefore, the application u/s 482 Cr.P.C. by the applicant is liable to be dismissed.
Having heard the submissions advanced on behalf of the rival parties and having perused the record of the case including the application, affidavits in support thereof and the annexures referred above, this Court finds that the FIR is vague as no role has been assigned against the applicant in it in respect to the death of the deceased, son of opposite party no. 2 except that on the unfortunate date of the incident, referred above, the applicant along with others had reached the house of opposite party no. 2 (Ram Awtar Purohit) and alleged to have wheedled the deceased to go to Jaipur to pursue the job of the said proprietor. As regards to the evidence collected during the investigation, as per the charge sheet, three of the witnesses namely; Sharad Purohit, Hari Shanker and Girraj, except the complainant, who was admittedly not present on the date of accident at the site, have referred only the circumstances in which the deceased might have died but they also have not disclosed any clue in respect of the involvement of the applicant in commission of the offence of murder. Sanjay Sharma, whose name has been mentioned at serial no. 3, as one of the witnesses in the charge sheet, referred above, was the only person was all through present with the deceased till funeral but altogether has casted no light as to who has caused the offence and is completely mum on the issue. Thus there is neither direct evidence nor chain in the circumstantial evidence is complete so as to prove the charge against the applicant. All the evidences, referred to above, do not establish any mens rea against the applicant to cause the death of the deceased. The allegations made in the FIR are inherently so improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the applicant. It also affirms that the criminal proceedings against the applicant has been manifested with malafide intentions is maliciously instituted with an ulterior motive for wreaking vengeance on the applicant, as he could not manage to win over the said proprietor according to the wishes of opposite party no. 2. There seems that it was a simple case of poisoning by some unknown persons for the purposes of stealing the suitcase of the deceased, which is evident from the conduct of the family members of the deceased as they did not approach the police station nor insisted for the panchayatnaama and post mortem of the dead body at the relevant time. In totality of the present it reflects that the proceedings against the applicant are only for his harassment without any foundation for the purposes of ulterior motives On perusal of the order impugned, it is established that the Magistrate concerned has not exercised sound judicial discretion and applied his mind to the facts and evidence before him, which is a fundamental function while passing any judicial order by any court of law by which personal liberty of a person, in the present case the applicant, has been curtailed. A Magistrate is supposed to be careful and vigilant while taking cognizance of an offence and issuing processes However, in the instant case, the Magistrate had adopted a routine approach while passing the order impugned, which is bad in the eyes of law.
In the aforesaid backdrop this Court comes to the conclusion that there is no legal and cogent evidence against the present applicant to be prosecuted and learned Magistrate failed to apply his judicious mind while taking cognizance in passing the order impugned, therefore, the order dated 17.03.2001 summoning the applicant is liable to be quashed.
Accordingly, application under section 482 Cr.P.C. is allowed. The charge sheet and the summoning order dated 17.03.2001 passed in the aforesaid case to the extent of the applicant-Raghunath Taliwal is quashed and his prosecution is directed to be dropped.
Order Date :- 2.7.2013 shailesh