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2015 DIGILAW 1028 (ALL)

ASHOK KUMAR @ SANAD v. STATE OF U. P.

2015-04-30

ARVIND KUMAR MISHRA I

body2015
JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—Heard learned counsel for the petitioners and learned A.G.A. for the State as well as Shri Rajesh Kumar Tripathi advocate holding brief of Shri Dileep Singh Yadav learned counsel for the complainant. 2. By means of instant writ petition, the petitioners have made prayer for quashing of the impugned order dated 5.2.2015 passed by the Additional Sessions Judge, Court No. 6 Kanpur Nagar, in Criminal Revision No. 329 of 2014 and the order dated 14.8.2014 passed by the Special Chief Metropolitan Magistrate, Kanpur Nagar in CV No. 63 of 2011 arising out of case No. 311 of 2009, respectively. 3. The facts of the case in brief is that an FIR lodged on 20.8.2009 at Police Station Sachendi, District Kanpur Nagar at Crime No. 311 of 2009 under Section 302 I.P.C., by informant Smt. Kamla. Investigation took place and the post-mortem examination was conducted on the cadaver of the deceased Km. Vandana on 19.8.2009. After investigation, a final report was submitted. 4. A protest was filed by the complainant against this final report whereupon the learned Special Chief Judicial Magistrate considered the merit of the case and rejected the final report and took cognizance of the offence and summoned the accused Ashok Kumar @ Sanad, Sanjay, Ajay @ Pahalwan and Dori Lal @ Nagar Singh under Sections 302, 342, 376 read with Section 34 I.P.C. which was challenged by way of the aforesaid criminal revision No. 329 of 2014 before the Additional Sessions Judge, Court No. 6, Kanpur Nagar which was dismissed vide order dated 5.2.2015 affirming the order dated 14.8.2014 passed by the Special Chief Judicial Magistrate, Kanpur Nagar, 5. Learned counsel for the petitioners has assailed both the orders impugned on the ground that there is no iota of evidence in support of offence of rape. The final report No. 63 CV of 2011 filed in the case was based on material and relevant evidence available on record, but both the Courts below vide aforesaid orders, misread and misinterpreted the final report and arrived at erroneous and perverse finding which finding in absence of cogent material be quashed. 6. Learned A.G.A. supported aforesaid impugned orders. The final report No. 63 CV of 2011 filed in the case was based on material and relevant evidence available on record, but both the Courts below vide aforesaid orders, misread and misinterpreted the final report and arrived at erroneous and perverse finding which finding in absence of cogent material be quashed. 6. Learned A.G.A. supported aforesaid impugned orders. Learned counsel for the complainant refuted the aforesaid prayer on the ground that the rejection orders have been passed by both the Courts below after considering the entirety of the matter and the statement of the first informant and the relevant documents. Thus, the impugned orders require no interference. 7. Considered aforesaid rival submissions and also perused both the impugned orders passed by both the Courts below. Earlier, an application under Section 482 Cr.P.C. No. 37340 of 2014 was disposed of by this Court vide order dated 8.9.2014, wherein, prayer for quashing of the entire proceedings of the instant case, was made. Copy of the said order is on record as Annexure 11 to the writ petition. On perusal of the record, I am of the opinion that both the impugned orders require no interference for the reason that the impugned orders are supported with the relevant material and evidence on record. I do not find any legal infirmity in the impugned orders at this juncture. 8. It comes out that at this stage, the Court below is required to assess and evaluate evidence within the ambit of prima facie case only and nothing more is required to be gone into. One is not to be confused with the degree of appraisal of evidence required while summoning the accused after rejection of the final report; than the degree of appraisal required during trial giving rise to possibility of conviction. The degree and magnitude of appraisal of evidence and circumstances at both stages differs widely from each other. Here the core consideration is confined to the extent of prima facie case only. 9. In view of the above discussions, the writ petition being devoid of merit, is dismissed as such. However, the petitioners shall be liberty to move their discharge application before trial Court at their convenience. ———————