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2011 DIGILAW 511 (UTT)

BABU LAL DASS v. STATE OF UTTARANCHAL

2011-08-10

SERVESH KUMAR GUPTA

body2011
JUDGMENT Hon’ble Servesh Kumar Gupta, J. By way of this Criminal Misc. application, it has been sought that the complaint case No. 4644 of 2006 and the order of cognizance dated 08.03.2007 passed thereupon be quashed. 2. This Court has heard learned counsel for the applicant Babu Lal Dass while none turned up on behalf of opposite party No. 2 Kiran Shankar, despite of personal service upon him. 3. The roots of controversy between Babu Lal Dass and Kiran Shankar germinated from another complaint No. 692 of 2006 titled as Babu Lal Dass Vs. Kiran Shankar and two others. That complaint case was tried in the court of Ist Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Rudrapur for the offences under sections 452, 323, 324, 325, 504 and 506 IPC and at the end of trial, the accused Kiran Shankar along with two his companions Samarkanti Sen and Dilip Adhikari were acquitted from the charges of the above offences on dated 30.06.2006. 4. Having been acquitted in complaint case No. 692 of 2006, Kiran Shankar filed this impugned complaint against Babu Lal Dass and Milan Bhattacharya. 5. It is pertinent to mention that Milan Bhattacharya was a witness in the complaint of Babu Lal Dass. In his complaint No. 4644 of 2006 during the course of trial, after levelling the charge, only Babu Lal Dass produced himself for further cross-examination under section 246 Cr.P.C. while he did not produce Milan Bhattacharya for the cross-examination. Learned Magistrate’s court also did not summon Milan Bhattacharya on its own to face further cross-examiantion so that case ended in acquittal. 6. In this impugned complaint, Kiran Shankar was examined under section 200 Cr.P.C. while under section 202 Cr.P.C., only the judgment of acquittal of criminal complaint case No. 692 of 2006 was produced. 7. Learned Magistrate after considering the statement of Kiran Shankar and judgment of complaint case No. 692 of 2006 did not find any sufficient reason for taking cognizance in any of alleged offences under sections 193, 195, 211 and 500 IPC and he dismissed the complaint dated 25.01.2007 under section 203 Cr.P.C. 8. The order of dismissal was challenged by Kiran Shankar in revision No. 21 of 2007 before Sessions Judge, Udham Singh Nagar who vide his order dated 23.02.2007 allowed the same. The order of dismissal was challenged by Kiran Shankar in revision No. 21 of 2007 before Sessions Judge, Udham Singh Nagar who vide his order dated 23.02.2007 allowed the same. He remitted the matter again to Chief Judicial Magistrate with the direction to pass an appropriate order appreciating whether any offences under sections 193, 195, 211 and 500 IPC is made out or not on the basis of evidence oral and documentary available on record. 9. Learned Sessions Judge has even censured the manner of passing the legal order by the Magistrate and has commented derogatory remarks against the Magistrate. 10. Learned Chief Judicial Magistrate on receiving the file back, has passed impugned order dated 08.03.2007 taking cognizance against Babu Lal Dass and Milan Bhattacharya for the offences under sections 193, 195, 211 and 500 IPC. 11. On bare perusal of this order of cognizance, it appears that learned Chief Judicial Magistrate Amit Kumar Sirohi has not taken trouble to go through the judgment and order of learned Sessions Judge dated 23.02.2007 and has passed an impugned order in a very summary way. He has not mentioned even a single reason as to how he appreciated the oral and documentary testimony forming the basis of cognizance order. It is a very cursory order passed in fickle style and it is not sustainable at all. 12. As regards, the merits of the complaint dated 23.12.2006, the provision of section 499 Fifth Exception IPC is worthy of consideration. By no stretch of imagination, the blame can be attached to Babu Lal Dass for the acquittal of Kiran Shankar in his complaint case No. 692 of 2006. Even the court did not make any observation under section 250 Cr.P.C. either against Babu Lal Dass or any of his witness. Failure to prove the allegations in the complaint case No. 692 of 2006 was entirely on different footing and not upon the grounds that Babu Lal Dass and his witness has deposed falsehood before the Court. 13. So, in view of the above, the complaint case No. 4644 of 2006 as well as order of cognizance dated 08.03.2007 passed thereupon, both are meritless and liable to be quashed. 14. This petition is allowed and complaint No. 4644 of 2006 and order of cognizance dated 08.03.2007 are quashed.