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2011 DIGILAW 2455 (ALL)

KAMLESH @ KULVEER v. STATE OF U. P.

2011-10-21

NAHEED ARA MOONIS

body2011
JUDGMENT Hon’ble N.A. Moonis, J.—The applicant has invoked the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the summoning order dated 18.10.2006 passed by the learned Chief Judicial Magistrate, Bijnor in F.R. Case No. 98 of 2005, under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. This petition was directed to be connected alongwith Criminal Misc. Application No. 15459 of 2006 by order dated 1.3.2007. In the Criminal Misc. Application No. 15459 of 2006 the same order was challenged and this Court passed an order on 28.11.2006 staying the proceedings till next date of listing. Since in both the petitions the order under challenge is identical passed against the applicants and as such both the petitions are being decided by common order. 2. The prosecution case in the nutshell is that an application was moved under Section 156 (3) Cr.P.C. by the opposite party No. 2 on 17.10.2005 before the Chief Judicial Magistrate, Nagina, Bijnor with the allegation that on account of litigation and political rivalry between the family of the applicants and the complainant on 9.10.2005 at about 8.30 p.m. when the complainant was sitting in the house of one Shiv Charan the applicants armed with tabal and lathi-danda entered into the house and started assaulting him. One accused Kamlesh was armed with tabal and the others were armed with lathi-danda. The complainant had received serious injuries of tabal on his head. Some other persons arrived at the spot and saved the complainant and while leaving the accused threatened him to life and taken away the spade of Shiv Charan. The persons who had reached there to save him had also sustained injuries, namely, Dharam Pal, Shiv Charan Singh and Nagesh alias Babbu but on account of fear of the accused/applicants they could not medically examined themselves and on account of the influence of the applicants the first information report was also not lodged. The complainant’s blood stained shirt was not taken by the police. The incident requires investigation to recover blood stained tabal and to collect evidence against the accused persons. The complainant’s blood stained shirt was not taken by the police. The incident requires investigation to recover blood stained tabal and to collect evidence against the accused persons. The police on the direction of the Chief Judicial Magistrate, Bijnor inquired the case and has submitted a report on 19.10.2005 that the complainant had lodged an N.C.R. No. 35 of 2005 on 9.10.2005 at 10.15 p.m. against Yashpal with regard to the incident occurred at 6.45 p.m. On the basis of the medical report of the complainant the case was converted under Sections 323, 324 and 504 I.P.C. on 16.10.2005 as case No. C-1036 of 2005 in which after investigation the charge-sheet was submitted on 14.11.2005. against Yashpal. While investigation was going on in the aforesaid case the opposite party No. 2 moved the application under Section 156 (3) Cr.P.C. on 17.10.2005 against five persons including Yashpal. The time of occurrence was disclosed at 8 p.m. in which final report was submitted on 5.12.2005. Aggrieved by the final report the opposite party No. 2 had filed a protest petition on 1.2.2006. The said protest petition of the opposite party No. 2 was accepted and rejected the final report and passed the order summoning the applicants under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. by order dated 18.12.2006. In respect of the same incident a cross N.C.R. was lodged under Sections 323, 504 I.P.C. at 12.45 p.m. on the same day by one Surendra Singh which was registered as N.C.R. No. 36 of 2005 and the charge-sheet was submitted under Sections 324, 323, 325, 504 and 452 I.P.C. The name of other persons were not mentioned except Yashpal in the first N.C.R. The injury of the complainant was simple in nature when it was examined at 11.45 p.m. on 9.10.2005. The charge-sheet has already been submitted in the N.C.R. No. 35 of 2005. The protest petition filed by the Investigating Officer in Case No. 1036-C of 2005 was rejected and summoned the applicants Niranjan Singh, Kamlesh, Vijendra and Hemraj under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. to face the trial by the impugned order dated 18.10.2006. 3. The protest petition filed by the Investigating Officer in Case No. 1036-C of 2005 was rejected and summoned the applicants Niranjan Singh, Kamlesh, Vijendra and Hemraj under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. to face the trial by the impugned order dated 18.10.2006. 3. It is vehemently argued by Sri A.B.L. Gaur, learned senior counsel assisted by Sri Pankaj Bharti that once the charge-sheet was submitted under Sections 324 and 504 I.P.C. on the basis of the medical examination of the opposite party No. 2 then in the absence of any other medical report the order taking cognizance under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. is unsustainable. The Court below has passed the order without application of mind in respect of the same incident simultaneous proceeding as State case as well as complaint case against the same applicant is an abuse of the process of Court. The injury report of the opposite party No. 2 is one in respect of both the incident which is alleged to have been occurred at 6.45 p.m. while the other is said to have occurred at 8 P.M. though the medical examination report of the opposite party No. 2 is only one in respect of which the charge-sheet was submitted under Sections 323, 324, 504 I.P.C. The final report was also submitted by the police, which was illegally rejected by the learned Magistrate by looking into the case diary and the statement of the witnesses hence the summoning order passed by the Court below is unsustainable and is liable to be quashed. 4. Per contra learned counsel appearing on behalf of the opposite party Sri Manish Kumar Pandey contends that the police in collusion with the accused persons had initially submitted the final report. The opposite party No. 2 had moved an application alongwith an affidavit on 21.10.2005 before the Additional Chief Judicial Magistrate, Nagina, Bijnor that he had not lodged any N.C.R. against Yashpal the learned Magistrate after summoning the N.C.R. found that it did not bear any signature or thumb impression of the opposite party No. 2. the police had taken the opposite party No. 2 from his house on 26.10.2005 and kept him in illegal custody who had taken the signature on the N.C.R. on 26.10.2005. the police had taken the opposite party No. 2 from his house on 26.10.2005 and kept him in illegal custody who had taken the signature on the N.C.R. on 26.10.2005. The brother of the opposite party No. 2 had sent the telegram in respect of the illegal custody of his brother. The police in collusion with the accused persons submitted the final report hence the application was moved under Section 156 (3) Cr.P.C. The application was moved alongwith affidavit of the informant and witnesses who had fully supported the prosecution case which are part of the case diary hence the learned Magistrate after considering the case diary and the statements of the witnesses recorded under Section 161 Cr.P.C. and the injury report of the complainant rejected the final report. The role of the police in the entire incident was suspicious. The N.C.R. was registered by the police in collusion that the accused persons naming only one accused Yashpal leaving behind the other persons and on account of which discrepancy of mentioning actual time of occurrence as mentioned in the application filed under Section 156 (3) Cr.P.C. is not the same as mentioned in the N.C.R. lodged by the police under Sections 323 and 504 I.P.C. On the basis of the statement of the complainant and of the witnesses and the medical report prima facie case has been made out against the applicants and by placing the wrong facts before this Court they have succeeded in getting an ex parte order whereby the proceedings have been stayed against the applicants. The order passed by the Court below suffers from no illegality and as such the present petition deserves to be dismissed. 5. The order passed by the Court below suffers from no illegality and as such the present petition deserves to be dismissed. 5. In support of his contention the learned counsel for the opposite party No. 2 has relied upon the decision of the Apex Court in Upkar Singh v. Ved Prakash, AIR 2004 SC 4324 wherein it is settled that even in cases where prior complaint is already registered a counter complaint is permissible but further goes to hold that even in cases where a first complaint is registered or investigation initiated it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation, therefore, it was open for the learned Magistrate at any stage to direct the police to register a case as soon as the complaint is brought to his notice and to investigate the same. It is argued that the learned Magistrate was justified in taking cognizance on the basis of the material collected during the investigation otherwise the opposite party No. 2 would have been deprived of his right to bring the real accused to book. The cognizance taken by the Court below cannot be said to be taken on the basis of any second complaint against the same persons. The learned Magistrate has prima facie found that the offence has been committed on the basis of the material collected by the Investigating Officer, therefore, the order passed by the learned Magistrate suffers from no illegality and as such the present petition deserves to be dismissed and the interim order is liable to be vacated. 6. I have considered the submissions of the learned counsel for the parties. The contention of the learned counsel for the applicants is that initially a non-cognizable report was registered only against one person and during the investigation of the non-cognizable report an application was moved under Section 151 (B) Cr.P.C. by adding more persons and taken cognizance by completely over looking that the final report was submitted by the police who had not found the commission of any offence, therefore, the cognizance taken by the Court below suffers from error of law, is not acceptable. It is the disputed question of fact whether the opposite party No. 2 had initially registered any N.C.R. against the applicants or not or whether the applicants in collusion with the police had got registered a non-cognizable report against only one person and therefore the application moved by the opposite party No. 2 under Section 156 (3) Cr.P.C. is not prohibited when it has been specifically denied by the opposite party No. 2 that no such non-cognizable report was registered by him. The opposite party No. 2 has no where mentioned in his application under Section 156 (3) Cr.P.C. that he had registered the non-cognizable report nor it is mentioned in the order impugned by the learned Magistrate, therefore, treating the protest petition of the complainant as complaint and proceeding against the applicants cannot be said to be a counter case subsequent to the registration of a case against one applicant only. All these questions require deep probe into the matter which can only be done after leading cogent proof. 7. It is not the stage to examine the correctness of the order passed by the learned Magistrate. The learned Magistrate is fully competent to examine the correctness of the fact stated in the complaint even after the final report submitted by the police and if he is satisfied with the material placed before him that the prima facie a commission of an offence is made out against the accused persons; he is fully empowered to summon them. 8. In view of the above this Court in exercise of power under Section 482 Cr.P.C. cannot substitute its own findings. The cognizance taken by the learned Magistrate does not suffer from any procedural illegality and interference at this stage it would amount to thwarting the case at its inception. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur v. State of Punjab, AIR 1960 SC 866 ; State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426; State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and Lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cr.) 283. The Court below has rightly taken cognizance against the applicants and as such both the petitions lack merit and are accordingly dismissed. The interim order granted on 28.11.2006 is hereby vacated. The Court below is directed to proceed with the case in accordance with law. —————