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2009 DIGILAW 922 (ALL)

TEJVIR SINGH v. STATE OF U P

2009-03-27

RAVINDRA SINGH

body2009
RAVINDRA SINGH, J. This appli cation has been filed by the applicant Tej Vir Singh, Sub-Inspector, Constable C. P. No. 221 Amar Singh and Constable C. P. No. 06 Dori Lal with a prayer to quash the charge-sheet of case crime No. 489 of 2004 under sections 147, 148, 149, 304 I. P. C. and 3 (2) (V) of S. C. /s. T. Act, P. S. Veesalpur, District Pilibhit and summoning order dated 20. 10. 2008 passed by learned C. J. M. Pilibhit in Criminal Case No. 4496 of 2008. 2. The facts in brief of this case are that the FIR of this case has been lodged by O. P. No. 2 Rameshwar Dayal on 6. 8. 2004 at 3. 30 p. m. at P. S. Veesalpur in respect of the incident which had occurred on 3. 8. 2004 at about 8. 00 p. m, the FIR was lodged against the applicants, the allegations against them are that they caused the injuries on the per son of the deceased Smt. Dharmawati by using kicks, fists and butt of the gun. Ac cording to the post-mortem examination report, the deceased had sustained abraded contusion 5 cm. x 4 cm. on right side face involving to right eye brow and near to right eye as ante-mortem injury, the cause of death could not be ascertained hence viscera was preserved, according to the viscera report, no poison was found, the investigation of this case has been done by C. B. C. I. D. , who submitted the charge-sheet dated 1. 10. 2008 in the Court of learned Magistrate concerned on which learned Magistrate concerned has taken the cogni zance, summoned the applicants on 20. 10. 2008. 3. Being aggrieved from the charge-sheet dated 1. 10. 2008 and the order of the cognizance dated 20. 10. 2008, this applica tion has been filed by the applicants with a prayer to quash the same by way of invok ing inherent powers conferred under section 482 Cr. P. C. 4. Heard Sri V. P. Srivastava, learned Senior Advocate, assisted by Sri Lav Srivastava, Sri V. K. Misra, learned Counsel for the applicants and learned A. G. A. for the State of U. P. 5. It is contended by learned Counsel for the applicants that on the day of the alleged incident, the applicant Tej Vir Singh was posted as sub-inspector and applicant Nos. It is contended by learned Counsel for the applicants that on the day of the alleged incident, the applicant Tej Vir Singh was posted as sub-inspector and applicant Nos. 2 and 3 were posted as con stables at P. S. Veeslpur district Pilibhit. Ac cording to the FIR itself, the daughter of one Chhotey Lal had gone in the company of his son in laws brother Mahendra Pal, on the basis of doubt and suspicion, Chhotey Lal brought the police personnel at the house of the first informant on 3. 8. 2004 at about 9. 0 oclock, at that time, the first in formant was not present at his house, the police personnel did the marpeet to know whereabout of Chnotey Lals daughter, it was replied by the wife of the first infor mant that the daughter of Chhotey Lal was not at her house then the applicant Tej Vir Singh, applicant Amar Singh and five other police constables and Chhotey Lal beaten the deceased by using the kicks, fists and butt of the guns, as a result of which she died. The first informant got its information then he came to his house and saw his wife as dead and due to fear, the first informant did not go to the police station, Veesalpur, he went to office of S. P. Pilibhit where he handed over the FIR, the FIR itself is indi cating that the applicants have gone to the house of the deceased in search of a kid napped girl. The applicants were discharg ing their official duty and its entry has been made by the applicants in G. D. also, the applicants are innocent, they have not caused any injury on the person of the de ceased, the inquest report of the deceased was prepared on 4. 8. 2004 on the basis of information given by O. P. No. 2, but it is surprising that no, FIR was lodged at P. S. concerned. The first informant is the wit ness in the inquest report, but according to the opinion of the witnesses of the inquest, the cause of death was not known. It was prepared in the presence of Naib Tehsildar, it shows that after great thought and con sultation the FIR of this case has been lodged in which the applicant Nos. The first informant is the wit ness in the inquest report, but according to the opinion of the witnesses of the inquest, the cause of death was not known. It was prepared in the presence of Naib Tehsildar, it shows that after great thought and con sultation the FIR of this case has been lodged in which the applicant Nos. 1 and 2 were named and after investigation, the charge-sheet has been submitted against applicant No. 3 also who is not named in the FIR. 6. It is further contended that the prosecution story is not corroborated with the medical report. According to the post mortem examination report, the deceased had sustained only one ante-mortem injury i. e. abraded contusion on right side face involving to right eye brow and near to right eye, due to this injury, no internal damage was found, but it was not cause of death. The cause of death could not be as certained, hence viscera was preserved, the position of lungs show that both were shrunken not easily detachable, it shows that the deceased died due to some other reason because, in viscera report also no poison was found and an application was moved on 23. 7. 2004 by Chhotey Lal and his wife Chandra kali before Chauki Incharge Kotwali veesalpur in respect of kidnapping of their daughter Rajo Devi in which Mahendra Pal son of Mangal Singh was ac cused. Mahendra Pal Singh is brother of the deceased, the kidnapped girl Rajo Devi had lived for about 15 days in her house, after getting its information, the applicant No. 1 was directed by Chauki Incharge to take the necessary action in the matter whereas the area concerned was not in the charge of applicant No. 1, he made humble protest but ultimately, he had to move for the action. In the morning of the said inci dent, the applicant conducted a raid in search of hard core criminals who were wanted under section 395/412 I. P. C. and were hiding themselves in the same area/village, the applicant came to the house of O. P. No. 2 where O. P. No. 2 was not available, the wife of O. P. No. 2 was available but she could not disclose the where about of Mahendra Pal, they did not assault the deceased even they were not having any knowledge about the death of the deceased but in this case the matter was investigated by C. B. CID and without do ing fair investigation, the charge-sheet has been submitted, in the present case, magis terial inquiry was also conducted by Sub-Divisional Magistrate in which it was found that the death of the deceased was natural, it had not occurred due to beating, some of the villagers filed their affidavits in support of the applicants. According to G. D. rapat No. 54 dated 3. 8. 2004 at 19. 45 Hours, the applicants had left the police station for conducting the inquiry in re spect of an application moved by Chhotey Lal, the applicants are entitled to get benefit of section 197 Cr. P. C. 7. It is further contended that the de ceased was suffering from respiratory dis ease, plura was adherent to the thoracic cavity wall bluish in colour both the lungs were severely adherent to the thoracic cav ity, shrunken not easily detachable, no poi son was found in viscera report, it was natural death but the allegation of marpeet has been made against the applicants after great thought and consultation due to ul terior motive whereas no such offence has been committed, the material collected by I. O. is not disclosing offence, the investiga tion has not been properly done and with out having any cogent evidence, charge-sheet has been submitted, which is illegal and the same may be quashed and the or der of the cognizance dated 20. 10. 2008 passed by learned Magistrate concerned on this charge-sheet is also illegal because it has not been passed after considering the material collected by the I. O. , it has been passed in a routine manner without con sidering the provisions of section 197 Cr. P. C. which is illegal, the same may also be quashed. 8. 10. 2008 passed by learned Magistrate concerned on this charge-sheet is also illegal because it has not been passed after considering the material collected by the I. O. , it has been passed in a routine manner without con sidering the provisions of section 197 Cr. P. C. which is illegal, the same may also be quashed. 8. In reply to the above contention, it is submitted by learned A. G. A. that in the present case, on the basis of allegation made against the applicants, prima facie, offence is made out. The allegation of mar peet is against the applicants due to which the deceased had died. In inquest report itself, it has been mentioned that the deceased had died due to marpeet, it has been supported by post-mortem examination report also, the deceased had sustained abraded contusion on right-side face in volving to right eye brow and near to right eye. The condition of the internal organs of the body including lungs etc. also does not reflect that the death was natural, the pres ence of the applicants at the house of the deceased on the day of the alleged incident is admitted, but it is surprising that the applicants have not made any entry in the G. D. after their amad that the deceased had died due to any reason even no reference of her death has been mentioned in the G. D. , according to the statements of witnesses, the applicants have actively participated in causing the iniuries on the person of the deceased, the matter has been investigated by C. B. C. I. D. thoroughly, in the list of the witnesses, the names of 22 persons have been mentioned. Only on account of non presence of poison in viscera report, it cannot be said that the death of the deceased was natural, even during investigation, it has not been revealed that the deceased was seriously ill by any other disease. The report of the S. D. M. is not having any rele vancy at this stage, the material collected by the I. O. , prima facie, discloses the com mission of the offence, there is no illegality in the investigation as well as in submis sion of the charge-sheet and the applicants are not entitled to get the benefit of the section 197 Cr. P. C. because the alleged act done by them was not part of the discharge of their official duty, the learned Magistrate has not committed any error in taking the cognizance, the present application is de void of merit, the same may be dismissed. 9. Considering the submissions made by learned Counsel for the appli cants, learned A. G. A. for the State of U. P. and from the perusal of the record, it ap pears that admittedly, the applicants had gone to the house of the deceased on 3. 8. 2004, the specific allegation has been made against them causing the injuries on the person of the deceased, its reference has been made in the inquest report also, ac cording to the post-mortem examination report, the deceased has sustained ante-moiiem injury but the cause of the death was not ascertained, hence viscera was pre served subsequently, in viscera report no poison was found, the I. O. has interrogated so many witnesses, according to the state ments of the witnesses, the specific allega tion of causing the injury on the person of the deceased is made against the appli cants. The material collected by the I. O. , prima facie, discloses the commission of the offence punishable under sections 147, 148, 149, 304 I. P. C. and 3 (2) (V) of SC/st Act, the I. O. has not committed any error in submitting the charge-sheet. The learned Magistrate has not also committed any er ror in taking the cognizance after consider ing the charge-sheet vide order dated 20. 10. 2008. So far as application of the provisions of section 197 Cr. P. C. is con cerned, the alleged act done by the applicants does not come in the purview of the discharge of duty even then it may be dealt with by the Trial Court at the stage of the trial, there is no illegality in submission of the charge-sheet and order dated 20. 10. 2008 by which cognizance has been taken, therefore the prayer for quashing the charge- sheet as well as the impugned order dated 20. 10. 2008 is refused. 10. However, considering the facts and circumstances of the case, it is directed that in case the applicants have not ap peared before the Court concerned, they shall appear before the Court concerned within 30 days from today. 10. 2008 is refused. 10. However, considering the facts and circumstances of the case, it is directed that in case the applicants have not ap peared before the Court concerned, they shall appear before the Court concerned within 30 days from today. In case they apply for bail, the same shall be heard and disposed of expeditiously by the Courts below in accordance with the provisions of law. With this direction the application is fi nally disposed of. .