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2011 DIGILAW 2 (UTT)

PAPPU KHAN v. STATE OF UTTARAKHAND

2011-01-03

PRAFULLA C.PANT

body2011
JUDGMENT Hon’ble Prafulla C. Pant, J. : This is Delay Condonation Application No. 1349 of 2010, moved on behalf of the applicants/petitioners, for condonation of delay in moving the Restoration Application MCRC No. 1006 of 2010, for restoration of Criminal Misc. Application (C-482) No. 748 of 2007, which was dismissed for non-prosecution by this court, on 21.09.2010. 2. Heard. 3. There is delay of 32 days in moving the restoration application, which is sufficiently explained in the affidavit filed by Pappu Khan (petitioner No. 1). The Delay Condonation Application No. 1349 of 2010, is allowed. Delay is condoned. 4. Also, heard on Restoration Application MCRC No. 1006 of 2010, and perused the affidavit accompanying the application. 5. There is sufficient ground mentioned in the affidavit showing absence of the petitioner’s counsel on the date fixed (21.09.2010). In view of the principle of law laid down in Madhumilan Syntex Limited and others Vs. Union of India and another, 2007 A.I.R. S.C.W. 1971, the restoration application is allowed, on the condition that the parties shall be heard on merits today in the petition filed under Section 482 of Cr.P.C. The petition under Section 482 of Cr.P.C. stands restored to its original number on the condition, as above. 6. Heard, on the petition filed under Section 482 of Cr.P.C. 7. Brief facts of the case are that Bushra (deceased) died unnatural death in January 2007, in respect of which Mohd. Hayat (respondent No. 5) informed the police on phone that Bushra has been murdered. On the basis of said telephonic report, Crime No. 25 of 2007, was registered against unknown persons, in respect of offence punishable under Section 302 of I.P.C. Later, respondent No. 4 Nazakat Khan moved a written report on 26.01.2007, stating that the husband of the deceased has given wrong information that unknown persons have killed Bushra. In said report, complainant Nazakat Khan alleged that Wazeer (husband of the deceased) appears to have killed his wife. After investigation, a charge sheet was filed against accused Wazeer, for his trial in respect of offence punishable under Section 302/201 of I.P.C. On further investigation, another charge sheet was filed against present petitioners Pappu Khan and Bhuri (brother-in-law and sister-in-law of the deceased), for their trial in respect of offence punishable under Section 304-B of I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. It is this charge sheet, which has been challenged in the petition filed under Section 482 of Cr.P.C. by the two accused, namely Pappu Khan and Bhuri (brother-in-law and sister-in-law of the deceased). 8. Learned counsel for the petitioners drew attention of this court to the copy of judgment and order dated 27.07.2010, passed by Addl. Sessions Judge, Roorkee in Sessions Trial No. 158 of 2007, whereby Wazeer Khan (husband) has been acquitted of charge of offence punishable under Section 302/201 of I.P.C. On its basis it is argued that it will be abuse of process of law to direct the petitioners to face the trial, after acquittal of the husband. 9. It is pertinent to mention here that this Criminal Misc. Application (C-482) No. 748 of 2007 was filed in the year 2007, and the trial proceeded further as against the husband, who was not the petitioner in this case, and against whom separate charge sheet was filed. The judgment and order passed by the trial court acquitting the husband shows that said trial concluded in the year 2010. It is possible that the petitioners might be innocent, or might not have committed the offence for which a charge sheet was filed against them. But, merely on the basis of acquittal of husband against whom separate charge sheet was filed, in respect of offence punishable under Section 302 of I.P.C. It cannot be said that the proceedings against the present petitioners on separate charge sheet which relates to offences punishable under Section 304-B of I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961, is liable to be quashed. This court in its jurisdiction under Section 482 of Cr.P.C. cannot examine the factual aspect of the matter. It is relevant to mention here that ingredients of the offence punishable under Section 304-B of I.P.C. are different to the offence punishable under Section 302 of I.P.C. 10. In the above circumstances, without expressing any opinion as to the final merits of the case, this court is not inclined to interfere with the prosecution initiated against the present petitioners. 11. Therefore, the petition under Section 482 of Cr.P.C. is dismissed with the observation that if the petitioners, namely Pappu Khan and Bhuri surrender before the court concerned, their bail application shall be heard and disposed of without unreasonable delay. (Stay Application No. 1350 of 2010 also stands dismissed).