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2016 DIGILAW 3925 (ALL)

Shiv Gupta @ Shubham Gupta v. State of U. P.

2016-12-06

AMAR SINGH CHAUHAN

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JUDGMENT Amar Singh Chauhan,J. Heard learned counsel for the applicants as well as learned Additional Government Advocate for the State is present. The applicants, Shiv Gupta @ Shubham Gupta and two others, through the present application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the judgement and order dated 19.9.2016, passed by the Sessions Judge, Gorakhpur in Criminal Revision No. 145 of 2016 (Shiv Gupta @ Shubham and others vs. State of U.P.) and summoning order dated 01.04.2016 passed by the Chief Judicial Magistrate, Gorakhpur as well as the entire proceedings of Case No. 1243 of 2016 (State vs. Raj Kumar and others) under sections 147, 323, 504, 506, 304 IPC, Police Station Belipar, District Gorakhpur and further prayed to stay the aforesaid proceedings. It is submitted by learned counsel for the applicants that an FIR was lodged on 06.12.2015 at about 10.00 hours by the opposite party no. 2 with the allegation that applicants and three other persons namely Shakti Gupta, Raj Kumar Gupta and Shubham Gupta along with 10-15 associates assaulted the nephew of opposite party no. 2 namely Rishikesh Madheshiya. Thereafter the injured succumbed to injury. In the post mortem report, cause of death is coma as a result of anti mortem head injury. Two anti-mortem injuries were found on the body of the deceased. One is 2x2 cm abrasion Trimatic on chin and second is contused swelling on left side parietal 6x4 cm in size on cutting skin underneath haematoma is present. It is further submitted that after concluding the investigation, the Investigating Officer submitted charge sheet only against two persons Raj Kumar Gupta and Shakti Gupta but the Chief Judicial Magistrate after perusing the case diary took cognizance against the applicants also under sections 147, 323, 504, 506, 304 IPC. Against the summoning order, the applicants preferred criminal revision which was also dismissed then the applicants came up by moving this application under section 482 Cr.P.C. to invoke the inherent jurisdiction of the Court. It is also submitted that learned Magistrate, without applying his judicial mind, summoned the applicants and the learned Sessions Judge has erred in affirming the order of summoning without considering the reasons given by the learned Magistrate, which is patently illegal and not sustainable in the eye of law. The opposite party no. It is also submitted that learned Magistrate, without applying his judicial mind, summoned the applicants and the learned Sessions Judge has erred in affirming the order of summoning without considering the reasons given by the learned Magistrate, which is patently illegal and not sustainable in the eye of law. The opposite party no. 2 has only cooked up the story with mala fide intention just to harass the applicants. The I.O. has recorded the statement of several witnesses in which they have stated that applicants reached on the occurrence place after hearing the noise. It is also submitted that no active participation is mentioned in the case diary against the applicants. Learned AGA submitted that the summoning order has been confirmed by the revisional court and this application is not maintainable as observed in Krishnan and another vs. Krishnaveni and others (1997) (4) SCC 2411 wherein it has been held that though the power of the High Court under section 482 Cr.P.C. is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under section 397 of Criminal Procedure Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process of miscarriage of justice by exercise of jurisdiction under section 482 Cr.P.C. Another Bench of this Court in Ramesh Chandra Maji vs. State, decided on 19.2.2016 in Case No. 3471 of 2014 observed that after submission of the final report, the Magistrate has three options. First option is that he may refuse to accept the final report and take cognizance of the offence forthwith if he finds that from the material collected during investigation, there is sufficient evidence to proceed against the accused; the second option open to the Magistrate is that he may order for further investigation if he finds that investigation has not been done properly and the third option open to the Magistrate is that he may treat the protest petition filed by the complainant as complaint case and after following the procedure prescribed for the complaint case, may either dismiss the complaint or pass order under Section 203 Cr.P.C., summoning the accused persons. From the perusal, it appears that on the basis of the material collected by Investigating Officer, prima facie, offence is made out. The Magistrate may take cognizance of any offence under section 190(1)(b) Cr.P.C. upon the police report of such fact when there is a sufficient material to proceed with the case against the applicant. There is no illegality in the summoning order. Therefore, the prayer for quashing the summoning order and the order passed in revision is refused. However, considering the facts and circumstances of the case, it is directed that applicants move application for appearance/surrender before the court concerned within 30 days from today on which the court concerned shall fix a date of surrender/appearance, in the mean time the court concerned shall seek the instructions from the prosecution side. In the case the applicants move the application for bail on the date of appearance or surrender, the same shall be considered and disposed of expeditiously by the court below. With this direction, the application is finally disposed of.