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Allahabad High Court · body

2016 DIGILAW 1027 (ALL)

Rajendra v. State of U. P.

2016-03-18

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. This application has been filed with the prayer to quash the order dated 25.2.2016 passed by the learned Additional District & Sessions Judge, Court No. 1, Hathras passed in Criminal Revision No. 268 of 2013 (Rajendra and others Vs. State of U. P. and another) and order dated 9.10.2013 passed by the learned Chief Judicial Magistrate, Hathras in Criminal Complaint Case No. 1320 of 2010 (Yogesh Kumar Vs. Rajendra and others) under Section 302 , 201 IPC, Police Station Sasni, district Hathras. It has been further prayed to stay the further proceedings of complaint case aforesaid. 2. It is submitted by the learned counsel for the applicants that in the present matter first information report was lodged by the father of the deceased on the basis that an accident took place in which his son died. First information report was registered under Section 279, 304-A IPC. Matter was investigated and final report was submitted. Brother of the deceased moved an application under Section 156(3) Cr. P.C. after a gap of one and half month giving details as mentioned in the first information report lodged by Ram Prakash and also specifying the role played by the accused person for the offence under Section 302 IPC. Matter was again investigated by the police and again final report was submitted. Protest petition was filed and the same is still pending. Final report submitted in the earlier first information report is also pending. 3. Informant of the second first information report i.e. Yogesh Kumar filed a complaint on the basis of same set of facts, as mentioned in the second first information report, suppressing the facts of the final report and court concerned illegally summoned the applicants to face the trial for the offence under Section 302 IPC without considering the fact that police after investigation has submitted final report twice. 4. It was further argued that there was enmity between the parties and due to that reason after a gap of one and half month applicants were roped in the matter only to take revenge. The whole complaint case is improbable. Eye witnesses examined in the matter by the complainant have not seen the incident. They have deposed false story before the concerned Magistrate. It was further argued that since protest petition filed on the final report are still pending hence summoning order passed in the complaint is illegal. The whole complaint case is improbable. Eye witnesses examined in the matter by the complainant have not seen the incident. They have deposed false story before the concerned Magistrate. It was further argued that since protest petition filed on the final report are still pending hence summoning order passed in the complaint is illegal. It was further argued that the concerned Magistrate has also not taken into consideration this fact that all the witnesses cited in the complaint and required under Section 202 Cr.P.C. were not examined by the complainant. Referring to the post mortem report and other documents annexed with the application submission was also made that proceeding of the aforesaid complaint be quashed. It was also argued that revisional court also did not consider the true aspect of the matter and illegally affirmed the order passed by the concerned Magistrate. 5. Learned A.G.A. appearing for the State argued that complaint was not barred in the matter. Though protest petition had been filed yet the complainant has right to file the complaint. Non disposal of the complaint by the concerned Magistrate will also not create any bar in continuation of the trial in lieu of the summoning order passed in the complaint. Only requirement of the law is that all the material witnesses in the case exclusively triable by the sessions court should be examined. 6. I have considered the rival submissions and gone through the entire record. 7. A perusal of the record shows that initially first information report was lodged on behalf of the father of the deceased under Section 279, 304-A IPC and police after investigation submitted final report in the matter. Application under Section 156 (3) Cr.P.C. was also moved on behalf of the brother of the deceased on 29.7.2009 for the offence under Section 302 IPC. Again police submitted the final report. Informant has filed protest petition which is still pending for disposal. Complaint was filed during the pendency of the final report. Summoning order passed on the complaint was challenged by way of revision. Now the question is whether complaint was barred in the matter on the basis that protest petition is still pending for disposal. 8. It will be useful to mention here that it was incumbent upon the concerned Magistrate to pass appropriate order on the protest petition. Summoning order passed on the complaint was challenged by way of revision. Now the question is whether complaint was barred in the matter on the basis that protest petition is still pending for disposal. 8. It will be useful to mention here that it was incumbent upon the concerned Magistrate to pass appropriate order on the protest petition. If no order has been passed, the proceeding of the aforesaid complaint cannot be quashed on this ground. Other facts raised by the learned counsel for the applicants are factual matter and require leading of evidence which cannot be done at this stage. The court dealing with the matter has to see only prima facie case. From the perusal of the entire evidence available on record it cannot be said that no prima facie case is made out against the applicants. 9. So long as examination of all the witnesses in support of the complaint is concerned it is the choice of the complainant to whom he/she examined. Only requirement of the law is that material witnesses should have been examined. Witnesses examined in support of the complaint have clearly supported the prosecution case and a prima facie case is made out. Thus the submission raised by the learned counsel for the applicants is not acceptable. 10. So long as the submission raised by the learned counsel for the applicants regarding suppression of material facts regarding pendency of the final report is concerned, this Court is of the view that on this score summoning order could not be quashed/set aside. Order passed by the revisional court is also in accordance with law. Provisions of Section 210 Cr. P.C. could not be applied in the present matter as investigation is over and final report has been submitted. No cognizance was taken by the concerned Magistrate on the final report (police report). 11. Thus no ground is made out to invoke the jurisdiction under Section 482 Cr. P.C. The application being devoid of merit is hereby dismissed.