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2004 DIGILAW 179 (HP)

AMITABH SHARMA v. STATE OF H. P.

2004-08-02

K.C.SOOD

body2004
JUDGMENT Kuldip Chand Sood, J.(Oral).—This petition arises out of the orders of the learned Judicial Magistrate 1st Class, Manali, dated 29th March, 2004. The order reads as under:— "Heard, perusal of the record strong prima facie case made against the accused under Section 279, 337, 338 IPC Notice, of accusation under Section 279, 337, 338 IPC put to the accused to which he pleaded not guilty and claimed trial. Now to come up for PWs at Sr. No.1 to 4 alongwith CW-2 Braham Rishi Raj on 27.4.2004 and remaining PWs be summoned for 28.4.2004." 2. In order to appreciate the controversy, few facts may be noticed. It appears, from the record, in a case registered with Police Station Manali for the offences punishable under Sections 279 and 337 of the Indian Penal Code, in terms of FIR No. 193 of 1997, a cancellation report was submitted by the Superintendent of Police Kullu by his letter dated 23rd August, 1997 saying that the complainant during investigation stated that he was standing on the road. When suddenly he ran to cross the road and struck against a vehicle. He could not know how the accident occurred. It is on the basis of this statement recorded by the police that cancellation report was submitted in the Court, 3. The complainant lodged protest against the cancellation report. Learned trial Magistrate by his detailed orders dated 28th May, 2001 disagreed with the cancellation report and took a view that cancellation report submitted by the investigating officer is not correct. He found that prima facie case was made out against the aforesaid accused for which he took cognizance. The order dated 28.5.2001 reads :— "This cancellation report is submitted by police station, Manali. Complainant objected for cancellation and he also adduced the evidence in the present case. I have seen the case file and the statement of complainant as well as his witness Rishi Raj who adduced while objecting the cancellation report. In the present case this cancellation report submitted by HC Lal Chand and Inspector K.C. Rana SHO by stating the reason that complainant was at fault as he ran against the vehicle which met in accident. Perusal of case file revealed that the cancellation report which is submitted by the concerned I.O., the same appears to be furnished to defeat the criminal process of justice. Perusal of case file revealed that the cancellation report which is submitted by the concerned I.O., the same appears to be furnished to defeat the criminal process of justice. In the present case complainant stated to be walking on the road side when he was hit by vehicle gypsy No. HP-17-7111 driven by accused Amitabh Sharma son of Arun Sharma, c/o M/s Ragency Carbide (P) Ltd. r/o 19, Industrial Area Paonta Sahib, District Sirmour. H.P. As per the reason assigned by the investigating officers, if these pleas were taken for cancellation, to my mind 90% cases would be considered for cancellation. The gypsy which was driven by the accused, it is mechanical machinery having accelator, brakes, clutch. It is always upon the accused to apply the mechanical system, in order to avoid the accident. A person who was moving on a road side could not be held for fault as human being was moving on the road side. It is always the fault of vehicle which was driven rash and negligently, struck against the passer who was moving on the road side. These acts of investigating officers are highly un-recommendable, biased, appears to be unjustified. If the case of investigating officer believed to be true, it is incumbent duty upon a Court to release the accused for lacking of requisite mensrea. By no stretch of imagination the investigation officer who had never seen the occurrence, could say that this accident was occurred by the fault of complainant who run against the gypsy and dashed against it. Keeping the reasoning above, I am not satisfied with the cancellation report submitted by the investigating officer. Prima facie case is made out against the aforesaid accused for which this Court is hereby taking the cognizance of offence. Notice be issued to the accused. Delay/bar of limitation is hereby condoned. Carbon copy of this order be sent to police station, Manali with direction to furnish the list of witness, complete charge sheet against the accused and prepare accused copy. Police to receive the police zimni from this Court. Copy of this order be also supplied to SP, Kullu for information and necessary actions, if any, against the defaulting investigating officers, if so desire. Notice to accused and SHO returnable for 6.7.2001. Court file, statements and FIR be retained.” 4. He accordingly directed the issuance of notice to the accused. Police to receive the police zimni from this Court. Copy of this order be also supplied to SP, Kullu for information and necessary actions, if any, against the defaulting investigating officers, if so desire. Notice to accused and SHO returnable for 6.7.2001. Court file, statements and FIR be retained.” 4. He accordingly directed the issuance of notice to the accused. He also directed issuance of notice to the Station House Officer while retaining the various statements recorded by the investigating officer and the First Information Report. The complainant was summoned. The case lingered on for almost three years and on 29th March, 2004 the Magistrate passed the impugned orders. 5. Grievance of the petitioner is that the Magistrate adopted the procedure unknown to the Criminal Procedure Code as he had recorded the statements of Deep Chand, complainant and another witness Braham Hrishi Raj before making up his mind to take cognizance of the case and thus was influenced in passing the order dated 28th May, 2001 by the statements of the complainant and his other witness which was not permisible under the law. 6. A reading of the order dated 28th May, 2001 does not show that the Magistrate took into consideration two statements recorded by him on 20th January, 2000. There is no reference to the statement of these two witnesses. There is not a word, not a murmur about, these two witnesses having been recorded. Why and under what circumstances these two witnesses were recorded is not on record. Zimni order shows that when this case was taken up on 10th December, 1999, complainant Deep Chand was to file objections which he did not do and time was allowed. The case was directed to be listed on 20th January, 2000. Suddenly on 20th January, 2000, learned Magistrate recorded the following order:— "2 CWs S/Shri Deep Chand and Rishi Raj are present and axamined. Learned Counsel for complainant sought adjournment to produce remaining evidence. Allowed. Now to come up for remaining evidence if any on 1.3.2000.” 7. This order too does not disclose why the statements of the complainant and his witness were recorded on that date. Thereafter the case was listed from time to time and adjourned in a routine manner for no apparent reason. Mostly the case was adjourned for consideration. It appears this Magistrate was transferred before passing of the order dated 28th May, 2001. Thereafter the case was listed from time to time and adjourned in a routine manner for no apparent reason. Mostly the case was adjourned for consideration. It appears this Magistrate was transferred before passing of the order dated 28th May, 2001. The Magistrate who took over was not aware that the statements of complainant and his witness Braham Hrishi Raj has been recorded by his predecessor. His attention was not drawn to this when he passed the order on 28th May, 2001 on which date the complainant was present in person alongwith his Counsel. 8. It is settled position of law that when a cancellation report is submitted under Section 173 of the Cr.P.C. then two situations arise; The Magistrate can after notice to complainant/informant :— (a) accept the report and drop the proceedings ; (b) dis-agree with the report and take a view that sufficient grounds exist to proceeding against the accused. 9. A reading of the order dated 28th May, 2001 shows that the Magistrate while dis-agreeing with the report took the cognizance of the offence without refering to any of the statements which were recorded by his predecessor on 1st March, 2000. 10. In the facts and circumstances of the case, no illegality has been committed by the trial Magistrate directing trial of the accused after issuing him notice of accusation. No interference is called for. Dismissed. Petition dismissed.