Dismissed

Suresh Chandra Kaushik and Another v. State of U.P. and Another

Allahabad HC23 Jan 2020A482/11183/2005

Case brief

AI extract

What is this about?

This petition under Section 482 Cr.P.C. sought quashing of an order taking cognizance in a murder trial. The High Court held the discharge order not applicable and dismissed the petition as the discharge application was made without defence evidence record.

What did the court decide?

The application under Section 482 Cr.P.C. challenging the impugned order dated 16.07.2005 was dismissed and any interim order stands vacated.

Suresh Chandra Kaushik and Another Vs State of… — Criminal Trial and Appeal | Allahabad HC (2020)

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 11183 of 2005 Applicant :- Suresh Chandra Kaushik And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- P.K. Singh, Alok Sharma, Kamlesh Shukla, Ravindra Sharma

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Counsel for Opposite Party :- Govt. Advocate,Anand Pandey,Kamini Pandey

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Hon'ble Sudhir Agarwal,J.

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Heard Sri Satish Trivedi, Senior Counsel assisted by Sri Ravindra Sharma, learned counsel for applicants and learned A.G.A. for State. None is present on behalf of respondent-2 though called in revise. Hence, I proceed to decide this matter after hearing learned counsel for applicants and learned A.G.A.

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Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order dated 16.07.2005 passed by A.C.J.M. Ist Mathura in Complaint Case No.1476 of 2004, whereby application challenging summoning order was rejected and also to quash entire proceedings of Complaint Case No.476 of 2004, under Sections 324 and 504 IPC.

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A criminal complaint was filed and registered as Case No.1476 of 2002 and has been filed as Annexure-4 to this application, wherein complainant has said as under :

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^^fnukad 23-9-2002 dks le; ,d cts djhc oknh vius cguksbZ ;ksxs'k 'kekZ ds ?kj muds fuokl Vkbi 4 vkoklh; ifjlj ih0,e0ch0 ikyhVsfDud x;k gqvk Fkk rFkk cguksbZ ;ksxs'k 'kekZ ds dkyst esa gksus ds dkj.k tks fd ogka izoDrk gSa vkjksih viuh cgu jsuw ds lkFk gky ¼M~kbax:e½ esa cSBk ckrphr dj jgk Fkk fd vpkud vfHk;qDrx.k ftuesa vf[ky ds ikl pkdw Fkk tcju ?kj esa ?kql vk;s rFkk lqjs'k pUnz ds dgus ij fd dUgS;k fey x;k gS rks blh lkys dks [kRe dj nks ;ksxs'k dks fQj ns[k ysxsa rHkh tku ls ekjus ds bjkns ls vf[ky dkSf'kd us oknh ds isV esa pkdw Hkksad fn;k rFkk ?kVuk dks ns[k jgh oknh dh cgu jsuw ds fpYykus ij eqfYteku us dgk fd mls Hkh fo/kok djds ne ysxsa Hkkx x;sA**

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“On 23.09.2002 at around 1:00 p.m., the complainant had

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gone to his behnoi (sister's husband) Yogesh Sharma's residence - Type 4, Residential Premises, PMB Polytechnic College. As his behnoi Yogesh Sharma, being a Lecturer, was in the college, he was sitting with his sister Renu in the drawing room and talking to her; meanwhile, accused persons including Akhil, who had a knife, forcibly entered the house; and on being exhorted by Suresh Chandra in the words 'Kanhaiya has been found, finish him off. We will see Yogesh later', Akhil Kaushik with the intention to kill, stabbed the complainant on his abdomen. Renu, who was witnessing the occurrence, raised an alarm, upon which the accused persons stated that they would stop only when they render her a widow.”

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(English translation by Court)

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Complainant placed before concerned Magistrate, injury report and deposed his own statement, statement of Dr. Priyanshu Jain, who has examined injured Sri Kanhaiyya (complainant) and verified his injury report that on stomach of complainant there was stab wound on right side.

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After considering aforesaid evidence, Magistrate took cognizance.Thereafter applicants filed application under Section 245 (2) Cr.P.C. for discharge stating that evidence is not reliable, there is no eye witness and there is contradiction in the evidence. Magistrate has examined the same and rejected the application for discharge after observing that, prima facie, evidence of complainant shows that offences under Section 324 and 506 IPC are made out against applicants and in which, for trial thereof, they have been summoned.

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With regard to injury, Magistrate in the impugned order dated 16.07.2005 has said as under :

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^^;|fi ?kVuk ds fdlh izR;{kn'khZ lk{kh dks /kkjk 202 n0iz0la0 ds varxZr ijhf{kr ugha djk;k x;k] ysfdu Mk0 jkts'k Msfu;y dks /kkjk 202 na0iz0 la0 ds varxZr ijhf{kr djk;k x;k gSA ftUgksaus viuh lk{; esa ;g dgk gS fd esfMdy fjiksVZ eSjs cksyus ij Mk0 fgeka'kq tSu ds }kjk fy[kh xbZ FkhA fpfdRlh; ijh{k.k ds nkSjku dUgS;k ds nkfguh rjQ isV ij ukHkh ls djhcu 6 bap ,d yEch pksV ftldh yEckbZ 3-1@2 bap Fkh vkSj tks fd 0-25 ls0eh0 xgjh fLdy Mhi FkhA tks fd rst /kkjnkj gfFk;kj ls igqapkbZ xbZ FkhA**

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“Although, none of the eyewitnesses have been examined under section 202 CrPC, but Dr. Rajesh Daniel has been examined under the provision of section 202 CrPC, who, in his evidence, has stated that the medical report, on being dictated by him, has been been written by Dr. Himanshu Jain. During the medical examination of Kanhaiya, an injury on the right region of abdomen, which was 6 inch away from his navel, measuring 3½ inch x 0.25 cm x skin deep, which was inflicted with sharpedged weapon.”

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(English translation by Court)

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At this stage it is not disputed that defence evidence was not recorded when application for discharge was moved and Magistrate has only considered and examined the evidence of complainant and witnesses under Sections 200 and 202 Cr.P.C. After examining aforesaid evidence, Magistrate, prima facie, was satisfied that offences under Section 324 and 506 IPC were made out and thereafter took cognizance. In absence of any material on record to show that evidence was perverse, particularly when, defence evidence is yet to be adduced and it cannot be said that order passed by Magistrate is patently illegal.

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Learned counsel for applicants placed reliance in Ajoy Kumar Ghose vs. State of Jharkhand and another, 2009 (14) SCC 115 and submitted that order of discharge can be passed at any stage.

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In aforesaid judgment itself, it is not disputed that when a discharge application is filed without bringing on record any defence evidence and available on record is only the evidence of complainant, Magistrate has to weigh only the evidence of prosecution and nothing more than that. As such, the said judgment is not applicable to the facts of this case.

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The application lacks merit and is accordingly dismissed. Interim order, if any, stands vacated.

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Order Date : 23.01.2020 Manish Himwan

Suresh Chandra Kaushik and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Suresh Chandra Kaushik and Another v. State of U.P. and Another

Case brief

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