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2016 DIGILAW 2738 (ALL)

JAGDISH KUMAR v. STATE OF U. P.

2016-08-09

VIJAY LAKSHMI

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JUDGMENT : Hon'ble Mrs. Vijay Lakshmi, J. Heard learned counsel for the applicants, learned A.G.A. for the State and learned counsel for O.P. No. 2. Perused the records. The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the cognizence order dated 20.1.2001 passed by the C.J.M. Varanasi, in Case No. 255 of 2001, State Vs. Ravi Kumar and others, arising out of Case Crime No. 113 of 2000, under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, P.S. Cantt., district Varanasi. The contention of learned counsel for the applicants is that the applicants are innocent and O.P. No. 2 has lodged a false FIR against them with a delay of three weeks without any plausible explanation for the same. Learned counsel has drawn the attention of this court to the dying declaration of the deceased, copy whereof has been annexed as Annexure no. 6 to the affidavit filed in support of the application, which shows that the deceased has clearly stated that while boiling milk for her child she accidentally caught fire and at that time no family member was present at home, however, her mother-in-law reached there and extinguished the fire. The further submission of learned counsel for the applicant is that the aforesaid dying declaration has been recorded in accordance with law by the Settlement Officer of Consolidation, Varanasi, after the Medical Officer, S.S.P.G. Hospital, Varanasi, certified that the patient remained conscious during and after such statement. It is next submitted by learned counsel for the applicant that prior to the lodging of the FIR the husband of the deceased had sent an information through speed post on 22.2.2000 to the police of P.S. Cantt., Varanasi, informing about the said occurrence, copy whereof has been annexed as Annexure no. 10 to the affidavit. Learned counsel has submitted that in view of the above facts, there is absolutely no possibility of conviction of the applicants and the criminal proceedings against the applicants will not only amount to a futile exercise but an abuse of the process of the court and sheer wastage of the precious time of the litigants, their counsel and the Court, hence the cognizance order and the entire proceedings of the case initiated in pursuance thereof be quashed. Learned AGA and learned counsel for O.P. No. 2 have vehemently opposed the application by submitting that while exercising the inherent jurisdiction under section 482 Cr.P.C. this court cannot look into the minute factual details and it cannot examine the veracity, reliability and truthfulness of the evidence, which are to be adduced by the prosecution during trial and this court cannot quash the entire proceedings on the basis of any evidence (dying declaration in the present case) without even giving opportunity to the prosecution to duly prove that evidence. Learned counsel for O.P. No. 2 has placed reliance on the law laid down by the Apex Court in the case of State of Orissa Vs. Bansidhar Singh, (1996) 2 SCC 194 , in which the Hon'ble Apex Court has held that "the veracity, reliability and truthfulness of the alleged dying declaration would be tested only after the evidence is recorded in the court and if on proper evaluation of such evidence, the court comes to the conclusion that the dying declaration is truthful version of the deceased relating to the circumstances of his death, then there is no question of any further corroboration as the conviction can be founded only on such dying declaration." In the wake of the aforesaid law laid down by the Hon'ble Apex Court this court while exercising the jurisdiction u/s 482 Cr.P.C. cannot judge the veracity, reliability and truthfulness of the alleged dying declaration. 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 Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The submissions made by learned counsel for the applicants call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual begins. The disputed defence of the accused cannot be considered at this stage. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge by moving a proper application for the said purpose before the trial court and he is free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by him before this Court in this application. Accordingly the prayer for quashing the impugned cognizance order is refused. However, it is directed that if the applicants appear before the court below and apply for bail within 30 days from today, the court below shall make endeavour to decide the bail application keeping in view the observations made by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). For the aforesaid period of 30 days no coercive action shall be taken against the applicants. With the aforesaid observations this application is finally disposed off.