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Allahabad High Court · body

2009 DIGILAW 3245 (ALL)

NAWAL KISHORE SHARMA v. STATE OF U. P.

2009-10-09

JAYASHREE TIWARI

body2009
JUDGMENT Hon’ble Mrs. Jayashree Tiwari, J.—The present revision has been filed against the order of the Special Judge Dacoity affected area, Jhansi dated 23.8.2001. 2. In short the contention of the revisionist is that the learned lower Court has failed to apply his independent mind on material available on record. The statement of Bhagwan Das and Swaroop Singh has not been vehemently discussed in the light of the persisting law. It is further alleged that the finding of improbability recorded by the learned lower Court is without any material available on the record. The witnesses present on the spot have given their evidence which has not been duly considered. 3. Learned counsel for the revisionist did not turn up despite the case is being called out in the revised list. Learned counsel Mr. Salman Ahmad holding brief of B.A. Khan opp. party No. 2 and learned AGA are present. I have heard the arguments of learned counsel for the opp. party No. 2 and learned AGA and perused the record of the case i.e. order dated 23.8.2001 which runs as follows : 4. The first information report is highly belated and the witnesses of the incident are chance and accidental witnesses and the evidence given by them is unbelievable and suspicious. It has also held that their presence on the spot is too suspicious. Later on, it is mentioned that the witness Bhagwan Das is a labour and alleges that he was taking tea in the hotel near the place of incident and he is aware of the names of the employees and officers. The second witness is a shop keeper and he stated that he was drinking water at 12:00 P.M. in the hotel and he is also well-conversant with the name of employees and officials and officers. On hearing noise, he came inside and has narrated the entire incident on the basis of which the learned lower Court has held that no case has been made out against the accused persons and dismissed the complaint. 5. On hearing noise, he came inside and has narrated the entire incident on the basis of which the learned lower Court has held that no case has been made out against the accused persons and dismissed the complaint. 5. In this connection, it will be appropriate to come through the provisions as annunciated in Section 203, Cr.P.C. which lays as follows: If, after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation, the Magistrate is of the opinion that there is no sufficient ground for proceedings, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 6. A perusal of aforesaid provision shows that prior to dismissing the complaint, Magistrate shall peruse the statements on oath of the complainant and the witnesses and shall form an opinion and if he comes to the conclusion that there is no sufficient ground for proceeding, he shall record his reasons in briefly on the point and then dismissed the complaint. The perusal of the order dated 23.8.2001 shows that finding has been recorded first and thereafter discussion, recording the statement of the complaint and the witnesses have been made which does not appear to be symmetrical in the order as provided in the scheme of Section 203. It was appropriate for the Magistrate concerned to first discuss the statements and evidence recorded of the witnesses and then to apply his mind and arrive at a finding. Whereas the perusal of the order shows that reverse process has been adopted. In the circumstances, I think that order is liable to be set aside. Accordingly the case is remanded back to the learned lower Court for rehearing and reconsidering the evidence of the witnesses in the light of the scheme under Section 203, he should first deal and discuss with the evidence and the statement of the witnesses and then form his opinion and then to lay down the reasons for dismissing the complaint. 7. The criminal revision is allowed. The case is remanded back to the learned Court for reconsidering the matter in the light of the objection made in the order, as also provided in the scheme under Section 203, Cr.P.C. 8. 7. The criminal revision is allowed. The case is remanded back to the learned Court for reconsidering the matter in the light of the objection made in the order, as also provided in the scheme under Section 203, Cr.P.C. 8. Matter be decided within a month from the date, a certified copy of this order filed before the concerned Court after giving an opportunity of hearing to both the parties. Parties to bear their own costs. ———