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2017 DIGILAW 487 (ALL)

HARI KISHAN v. STATE OF U. P.

2017-02-09

KARUNA NAND BAJPAYEE

body2017
JUDGMENT : Karuna Nand Bajpayee, J. This application u/s 482 Cr.P.C. has been preferred on behalf of applicants against the summoning order dated 8.6.2016 passed by the Chief Judicial Magistrate, Shahjahanpur in Complaint Case No.1215/2014 (Rakesh Kumar v. Hari Kishan) u/s 302, 504 and 506 I.P.C., Police Station- Sehramau South, District-Shahjahanpur and also against the order dated 16.01.2016 passed by Additional Session Judge, Shahjahanpur in Criminal Revision No.164/2016, which was preferred against the summoning order dated 8.6.2016 and has been dismissed. 2. Shri Yogesh Kumar Vaish, Advocate filed his power on behalf of opposite party no.2, which is taken on record. 3. Heard Shri Gautam Baghel, learned counsel for the applicants and Shri Yogesh Kumar Vaish, who has put in appearance on behalf of opposite party no.2 and also learned Additional Government Advocate. 4. Brief facts as emerge from the pleadings of petition are that one First Information Report was lodged on 01.07.2013 at 3.15 a.m. by opposite party no.2 against three applicants Hari Kishan, Golu alias Durvendra and Pradeep and one another person Satgur. The said F.I.R. was registered as Case Crime No.139 of 2013, u/s 302 I.P.C. at Police Station-Sehramau South, District-Shahjahanpur, in respect of incident dated 01.07.2013 with the allegations that above named four persons fired upon the father of opposite party no.2 namely Shripal due to an earlier dispute as a result of which the father of opposite party no.2 died on the spot and this incident has been witnessed by Smt. Mona Devi, who is wife of opposite party no.2. The said criminal case was investigated initially by the police Station Sehramau South and thereafter it was transferred to police Station-Rosa and thereafter it was again transferred to Police Station-Ram Chandra Mission. After completion of investigation, it was found that the story set up by opposite party no.2 was an ill-motivated fabrication done in conspiracy with few persons namely Shivram, Deepak, Sanjay and Rakesh, who are relatives of opposite party no.2 and it was also found that the deceased Shripal was in fact murdered by opposite party no.2 himself with the help of Shivram, Deepak and Sanjay in order to wreak vengeance from the applicants. After coming to such conclusion the Investigating Officer exonerated the present applicants and filed charge sheet being Charge sheet No.71 of 2013 dated 22.9.2013 against Shivram, Deepak and Sanjay for offences u/s 302, 182, 120-B I.P.C. and the supplementary Charge sheet No.72A dated 22.01.2014 against opposite party no.2 Rakesh for offences u/s 302/34, 182 and 120-B I.P.C. The opposite party no.2 after being chargesheeted moved protest petition before the Chief Judicial Magistrate, Shahjahanpur u/s 173(8) Cr.P.C. on 19.11.2013 but the same was rejected vide order dated 21.11.2013. The opposite party no.2 and other co-accused persons, who were chargesheeted by the Investigating Officer, challenged the charge sheet before this Court in Criminal Misc. Application u/s 482 Cr.P.C. Nos.43878 of 2013 and 25214 of 2014, which are pending till date. Thereafter, the opposite party no.2 filed complaint Case No.1215 of 2014 against the present applicants for the same incident i.e. the murder of his father Shripal, before the court of Chief Judicial Magistrate, Shahjahanpur, which has been impugned here in this application. The court below proceeded to record the statements of complainant/ opposite party no.2 as well as other witnesses u/s 200 and 202 Cr.P.C., during which present applicants got information about the pendency of said criminal case and eventually moved one application before the Chief Judicial Magistrate, Shahjahanpur apprising thereby that the investigation in respect of same incident of murder of Shripal has already been conducted and protest petition filed by the complainant of the complaint case has also been rejected and the complainant himself is the chargesheeted accused of said case which has been committed for session trial and has been registered as Session Trial No.703 of 2013 and 704 of 2013 in respect of all four chargesheeted accused. Therafter, the Chief Judicial Magistrate, Shahjahanpur considered the material available on record as well as objection pressed on behalf of present applicants and passed order dated 8.6.2016 observing therein that the complaint is maintainable and the statements recorded u/s 200 and 202 Cr.P.C. as well as the inquiry conducted by the court reveal prima facie case against the present applicants and one Satguru for offences u/s 302, 504 and 506 I.P.C. and they are liable to be summoned. Against this summoning order dated 8.6.2016, the applicants preferred Criminal Revision No.164 of 2016 which came to be dismissed on 16.01.2016 by holding that the summoning order does not call for any interference and the revision is liable to be dismissed. Against these two orders dated 8.6.2016 and 16.01.2017, the present application u/s 482 Cr.P.C. has been preferred by the applicants. 5. Submission on behalf of applicants is that the summoning of applicants for offence u/s 302, 504, 506 I.P.C. is bad in the eyes of law in view of the outcome of investigation conducted in pursuance of the F.I.R. dated 01.7.2013, wherein the complainant Rakesh Kumar himself has been found guilty of committing offence u/s 302 I.P.C. and lodging false F.I.R. against the present applicants. Further submission is that the court below has failed to consider the material available on the case diary relating to the F.I.R. dated 01.7.2013. It has been further submitted that the impugned orders do not qualify the requirement of Section-210 Cr.P.C. and are also in teeth of Section-162 Cr.P.C. In support of his contention, counsel for the applicants has relied upon the judgment of Apex Court in Jile Singh v. State of U.P. and others, (2012) 3 SCC 383 and has contended the facts of present case are similar to the facts of Jile Singh's case (supra) wherein the Apex Court has held that as the stage of Section-209 Cr.P.C. has reached in the case, it was not open to the Chief Judicial Magistrate, Mathura to exercise power u/s 204 (1)(b) Cr.P.C. and to issue summons to the appellant in view of the law laid down by the Apex Court in one earlier case of Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 followed by a subsequent decision of Kishori Singh v. State of Bihar (2004) 13 SCC 11 . 6. On the other hand learned A.G.A. as well as learned counsel for the complainant have vehemently opposed the submissions made on behalf of applicants and have contended that the summoning of present applicants for offences u/s 302, 504, 506 I.P.C. is justified and is in accordance with law and no interference either in the summoning order or in the revisional order is required. 7. 7. After going through the rival contentions, the pleadings and the material available on record and the position of law existing as on date, it may be seen that the case law relied by the counsel for the applicants is based upon the judgment of Apex Court in Ranjit Singh' case (supra) and Kishori Singh's case (supra), which were subject matter of consideration by Constitutional Bench of Apex Court in Dharam Pal and others v. State of Haryana and others (2014) 3 SCC 306 , wherein the Constitutional Bench has decided a reference in relation to the conflict of opinion in the decisions of Kishan Singh v. State of Bihar, (1993) 2 SCC 16 and Ranjit Singh v. state of Punjab (supra). After dealing with the issue at length, the Constitutional Bench came to the conclusion that the view taken in Kishan Singh's case (supra) is correct and the decision in Ranjit Singh's case (supra) does not lay down the law correctly. The Constitutional Bench overruled the decision given in Ranjit Singh's case (supra). In this view of the matter, the case law of Jile Singh 'case (supra) cited by the counsel for the applicants does not give any help to the applicants in view of the fact that the very basis of Jile Singh's case (supra) was the view taken by the Apex Court in Ranjit Singh's case (supra) and the said view has been turned down by the Constitutional Bench in Dharam Pal case (supra). 8. Even otherwise, the case in hand appears essentially to be a cross version in view of the fact that there are two rival stories in respect of murder of deceased Shripal. One version is based upon the investigation conducted by the local police in pursuance to the F.I.R. dated 01.7.2013 and another version set up by the opposite party no.2 Rakesh Kumar in the complaint case. Both the said rival versions are being dealt with in separate proceedings, one proceeding on the basis of F.I.R. dated 01.7.2013 and the chargesheets filed in pursuance thereof and another proceeding is based upon the complaint case initiated on the basis of complaint moved by the opposite party no.2. It is wholly immaterial at this stage that the opposite party no.2 is eventually the first informant of police case who has been chargesheeted by the local police. 9. It is wholly immaterial at this stage that the opposite party no.2 is eventually the first informant of police case who has been chargesheeted by the local police. 9. Without saying much about the factual merit of rival contentions to avoid prejudice to the ongoing proceedings, it is sufficient to observe that both the cases can very well be dealt with as cross versions of one incident and there is no bar under law to deal with cross cases at the same time, rather it is quite common that cross cases are permitted to continue to reach to their logical conclusions. The submissions made on behalf of applicants in respect of Sections 209 and 162 Cr.P.C. are also meritless in view of factual position of rival versions of the incident in question. It is wholly inappropriate to say anything on the factual merit of any criminal proceeding at such an initial stage, where only prima facie case is to be seen by the courts and there appears no occasion to interfere with summoning order dated 6.8.2016 and the revisional court's order dated 16.01.2017 which have been passed with sound reasonings. 10. In view of aforesaid the application, being sans merit, is hereby dismissed.