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2010 DIGILAW 2662 (ALL)

PHOOL CHANDRA TIWARI v. STATE OF U. P.

2010-08-31

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. Jagdish Singh Sengar for the petitioners, Dr. C.P. Upadhyaya for the respondent No. 2 and the learned AGA for the respondent No. 1 and perused the record. 2. This is a petition under Section 482 CrPC for quashing the summoning order dated 24.12.2008 as well as the proceedings of the complaint case No. 7475 of 2004, Sanjay Tiwari v. Phool Chandra Tiwari and others, pending in the Court of Chief Judicial Magistrate, Jaunpur, under Sections 302 and 201 IPC. 3. According to the complaint, the respondent No. 2 and the petitioners are on inimical terms due to litigations, which were going on between them from before the occurrence. It is also alleged that in the night of 10.8.2003 the deceased Baijnath had taken a sleep outside his house. On 11.8.2003, at about 5.30 a.m., his dead body was found hanging on a mango tree situating in front of the house of the deceased. An information to this incident was given to the police, on which basis the police made an inquest report and sent the dead body for post-mortem examination. It is also stated in the complaint that the deceased was killed in the night of 10th and 11th August 2003 but the culprits, in order to give a colour of suicide, hanged the dead body on the mango tree. There is no other allegation in the complaint. It is not mentioned in the complaint that petitioners killed the deceased or anybody else had seen them killing the deceased or the deceased and the petitioners were lastly seen together. The presence of the main witness Ambika Prasad Dubey has also not been shown in the complaint nor it is disclosed that he had given any information about his presence or about the incident. The presence of other witnesses has also not been disclosed in the complaint. 4. It may not be out of context to mention that the police, on investigation, submitted a final report and protest petition filed against the final report was treated as complaint. 5. The statement of respondent No. 2 was recorded under Section 200 CrPC. He has supported the complaint allegations but has not given any incriminating statement against the petitioners. 4. It may not be out of context to mention that the police, on investigation, submitted a final report and protest petition filed against the final report was treated as complaint. 5. The statement of respondent No. 2 was recorded under Section 200 CrPC. He has supported the complaint allegations but has not given any incriminating statement against the petitioners. The witness Chhotu Tiwari has given the statement that he had seen 7-8 persons in front of the house of the deceased Baij Nath Tiwari and identified three of them and they were Uma Shankar, Ram Yagya and Shobha Nath. These three persons told that deceased Baij Nath was ill and they had come there to take the deceased to a hospital for treatment. Witness Mukesh Tiwari has not named any body else and stated that he had seen 8-10 persons moving towards northern side of the road. This witness has, however, raised suspicion against the petitioners. The other witness examined in this case is Ambika Prasad Dubey, who has stated that he had gone to a doctor for treatment of his daughter in the night at about 11.00 p.m. and was coming back from the doctor in the morning at about 3-4 a.m. and saw that the deceased was being taken by the petitioners. Dr. D.B. Singh had done the post-mortem examination on the dead body of the deceased and stated that the cause of death of the deceased was hanging due to asphyxia. No other ante-mortem injury was found on the dead body of the deceased. 6. Mr. Jagdish Singh Sengar submitted that the learned Chief Judicial Magistrate has not passed the summoning order on the basis of materials on record. He has passed the summoning order only on the basis of the directions of the Sessions Judge. Therefore the summoning order is bad in law. Mr. Sengar further submitted that there is no evidence against the petitioners. The only evidence against the petitioners is the evidence of last seen given by witness Ambika Prasad Dubey and Chhotu Tiwari, whose presence in early morning at about 3-4 a.m. near the place of occurrence was highly improbable. The other witnesses have not spoken anything against the petitioners. Mr. Sengar further submitted that even according to the medical evidence, the death of the deceased was not homicidal but was suicidal. The other witnesses have not spoken anything against the petitioners. Mr. Sengar further submitted that even according to the medical evidence, the death of the deceased was not homicidal but was suicidal. The statement of witness Chhotu Tiwari that he had seen the petitioners Uma Shankar, Ram Yagya and Shobha Nath in front of the house of the deceased, who informed him that they had gathered there for taking the deceased to a hospital, was highly improbable in view of the fact that he was fully aware that the petitioners and the deceased were on inimical terms and litigations were already going on between them because this witness belongs to the same village. Therefore, the story narrated by the witness Chhotu Tiwari was not sufficient to summon the petitioners. 7. Dr. C.P. Upadhyaya, the learned counsel for the respondent No. 2, on the other hand, submitted that at the stage of passing a summoning order the Magistrate was not required to make appraisal of the evidence as is ordinarily done at the final stage of the trial. The learned Magistrate was merely required in law to see whether or not there were sufficient materials to make out a prima facie case for issuing processes against the petitioners. 8. I have perused the summoning order dated 24.12.2008. It appears that the summoning order has been passed mainly on the ground that the Sessions Judge had found a prima facie case against the petitioners. In my opinion, the summoning order ought to have been passed on the basis of the materials brought on record under Sections 200 and 202 CrPC and not on the basis of the observations of the Sessions Judge. It may also be mentioned that the learned Sessions Judge had only referred to the statement of the witness Ambika Prasad Dubey in his judgment and order dated 27.11.2008 rendered in Criminal Revision No. 443 of 2008 and casually observed that the other witnesses, namely, Chhotu Tiwari, Brijesh Tiwari and Sanjay Singh had supported the complaint in their statements but did not specify as to what were their statements. As already observed, witnesses Brijesh Tiwari and Sanjay Singh had not spoken anything against the petitioners. Moreover, the Sessions Judge failed to consider the statements of the witnesses Ambika Prasad Dubey and Chhotu Tiwari on the touchstone of probability on the lines submitted by the counsel for the petitioners. As already observed, witnesses Brijesh Tiwari and Sanjay Singh had not spoken anything against the petitioners. Moreover, the Sessions Judge failed to consider the statements of the witnesses Ambika Prasad Dubey and Chhotu Tiwari on the touchstone of probability on the lines submitted by the counsel for the petitioners. Therefore, it appears to be a case of total lack of application of mind to the facts and evidence on record by the Chief Judicial Magistrate while passing the summoning order. 9. It is well settled that the Magistrate, before issuing of processes under Section 204 CrPC, has to satisfy him either by examining the complainant and the witnesses if any under Section 200 CrPC or by holding the inquiry contemplated by Section 202 CrPC that there is sufficient ground for proceeding with the complaint. If the complaint relates to an offence triable exclusively by the Court of session, it is also a legal obligation on the part of the Magistrate to call upon the complainant to produce all his witnesses and examine them in the Court. Without doing so, issue of a process in respect of an offences triable exclusively by the Court of session is not proper. 10. In view of the facts and circumstances of the case, the learned Chief Judicial Magistrate, instead of passing the summoning order on the directions of the Sessions Judge, should have himself arrived at the conclusion that there was sufficient ground for proceeding against the petitioners. Without doing so, the summoning order has resulted in causing a grave injustice to the petitioners. 11. For the reasons stated above, the petition is allowed. The impugned order dated 24.12.2008 is quashed. The Chief Judicial Magistrate, Jaunpur is directed to reconsider the matter in the light of the observations made hereinbefore and pass a fresh order in accordance with law. —————