Dismissed

Kanwarpal@ Lala and 2 Others v. State of U.P. and Another

Allahabad HC13 Apr 2023A482/38783/2022

Case brief

AI extract

What is this about?

In this quashing application, the High Court rejected the applicant's plea that the summoning order was illegal due to non-examination of all witnesses under Section 202 Cr.P.C. The court held that once a protest petition is treated as a complaint and witnesses are examined, the magistrate is entitled to summon the accused.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; quashing of criminal proceedings refused.

Kanwarpal@ Lala and 2 Others Vs State of U.P… — Criminal Trial and Appeal | Allahabad HC (2023)

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AFR

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 38783 of 2022

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Applicant :- Kanwarpal@ Lala And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mayank Yadav,Vivek Kumar Singh Counsel for Opposite Party :- G.A.,Anil Kumar Dubey,Chandra Bhan Dubey

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Vivek Kumar Singh, learned counsel for the applicants, Mr. Chandra Bhan Dubey, learned counsel for the opposite party, and Mr. Amit Singh Chauhan, learned A.G.A. for the State and perused the record.

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This application under Section 482 Cr.P.C. has been filed by the applicant to quash the entire criminal proceeding of Complaint Case No. 13682 of 2021 (Smt. Sarla Vs. Kanwarpal @ Lala and others), under section 302 IPC, Police Station Chapprauli, District Baghpat as well as impugned summoning order dated 26.08.2022 passed by learned Chief Judicial Magistrate, Baghpat.

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Brief facts of the case is that an FIR was lodged by Trishpal, son of Bishambhar on 11.03.2019 at 13:18 hours which was registered as Crime No. 60 of 2019, under section 302 IPC at Police Station Chhaprauli, District Baghpat against unknown persons with the allegation regarding missing of his nephew Samrat whose dead body was found on 11.03.2019 at 10:30 am on road side near a pulia.

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On 11.03.2019, the postmortem of the aforesaid dead body was conducted wherein some injuries were noted and cause of death was due to throttling and shock.

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The matter was investigated by Investigating Officer and statement

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of the informant namely Trishpal was recorded 11.03.2019. In the aforesaid statement, the informant did not name anyone for involvement in murder of his nephew. On 14.03.2019, the Investigating Officer tried to record the evidence but nothing relevant was found by him. On 15.03.2019, the Investigating Officer while conducting the investigation reached the house of the deceased wherein Terahvin was being performed, during the conversation amongst the people present there, he came to know that sometime back there had been a quarrel between Pappu, Deshpal son Padam Singh and the deceased. During course of investigation, the Investigating Officer on 17.03.2019 came to know that the uncle of the deceased namely Kanwarpal @ Lal was also been suspected for involvement in murder of the deceased. On 20.03.2019, the statements of Ashok son of Padam Singh, Deshpal @ Kala, Pappu son of Padam and Bindar were recorded, from where it was found that the aforesaid persons had nothing to do with the alleged incident. On 25.03.2019 while investigating the matter, the Investigating Officer found that some dispute had taken place between the deceased and his uncle Kanwarpal but later on compromise was entered between the two. Likewise on 26.03.2019, 18.04.2019 and 22.04.2019 all efforts were made by Investigating Officer to find out the truth behind the alleged murder of deceased Samrat son of Shamsher. On 03.05.2019, statement of Shamsher (father of deceased), Smt. Sarla (mother of the deceased), Bharti and Shakshi (daughters of Shamsher) were recorded. The aforesaid persons in their statements clarified the position of Kanwarpal, uncle of the deceased for his non involvement in the alleged murder. On 07.05.2019, the statement of Shubham and Vicky were also recorded and the position of uncle namely Kanwarpal remained the same. On 10.05.2019, 21.05.2019 and 06.06.2019 statements of other persons were also recorded and the Investigating Officer could not gather any information about the murder of the deceased on the alleged dates. On 02.08.2019, the

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Investigating Officer recorded the statement of Kuldeep, Deepak, Harendra Singh and Ashok who stated that Manisha, aunt of the deceased is resident of village Soop from where relevant information may be gathered regarding the alleged incident. Statement of Deshpal Singh, Tejpal and Omveer Singh were also recorded on 16.08.2019 but the Investigating Officer could not gather any information about the culprit.

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On 15.10.2019, the investigation was handed over to SHO, Chapprauli Sri Dinesh Kumar and he was the fourth Investigating Officer, who started the investigation on 28.10.2019 but could not find anything relevant about the murder of the deceased Samrat. Finally on 28.05.2020, the Investigating Officer concluded the investigation and submitted a final report as nothing could be found against anyone connecting him with the murder of deceased. It appears that an order for further investigation was passed by Circle Officer on 21.06.2020 and investigation again commenced on 25.06.2020. Thereafter, on 16.08.2020, the investigation was handed over to new SHO, Chapprauli, who perused the entire case diary, however nothing was done by him in respect of investigation. Thereafter on 18.09.2020, investigation was handed over to newly appointed SHO Chapprauli, who perused the entire case diary on 19.09.2020 and proceeded to record the statement of Sarla (mother of the deceased) on 04.11.2020 but no name was disclosed by her. Newly appointed SHO recorded the statements of Shamsher Singh and Trishpal who also did not disclose any name. Thus on 12.11.2020, after visiting the nearby place and recording the statements of other persons, the investigation was concluded and final report was submitted.

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During pendency of the investigation of the aforesaid case, opposite party no. 2 filed a complaint case on 21.01.2020 being complaint case no. 249 of 2020 against the applicants under sections 302, 363, 201, 120B IPC with regard to murder of deceased Samrat. The aforesaid

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complaint was dismissed u/s 203 Cr.P.C. vide order dated 03.12.2021 as the complainant did not produce any evidence u/s 200 and 202 Cr.P.C.

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After submission of final report before the court concerned by the Investigating Officer notices were issued to opposite no. 2 to file protest petition against the applicants which was treated as complaint case by the learned Magistrate vide order dated 27.10.2021 and opposite party no. 2 was directed to produce her witnesses. The learned Magistrate recorded the statement of witnesses u/s 200 and 202 Cr.P.C. and finally summoned the applicants to face trial, hence the present petition has been filed.

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Learned counsel for the applicants submits that at no point of time during the ongoing investigation for a period of one and a half year, the name of the applicants were placed before the Investigating Officer and during this period statement of opposite party no. 2 was recorded on several occasions. He further submits that the witness Anil Kumar is uncle of the deceased who claims to be eye witness of the incident has not disclosed as to why this fact was not disclosed by him to the Investigating Officer and other official. The other witnesses have stated about the information of the incident to the parents of the deceased but none of them made it clear as to why no application with regard to the alleged incident was given to any senior police officer in respect of alleged biased investigation. The court below without going through the records of the case diary of the present case summoned the applicants to face trial ignoring the fact that the incident had taken place on 10.03.2019 and after proper report was submitted on several occasions, the witnesses claiming themselves to be eye witness, after about three years of the incident, have come out with a story and named the applicants and the applicants have been summoned.

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Learned counsel for the applicant submits that on 03.12.2021, the

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opposite party no. 2 namely Sarla mother of the deceased was examined u/s 200 Cr.P.C. and her witnesses Anil Kumar, Ashok Kumar and Shamsher were examined u/s 202 Cr.P.C. from where for the first time a new story was introduced stating that the opposite party no. 2 and the witnesses saw the applicants taking dead body of the deceased who was murdered on account of previous dispute between them. The counsel for the applicant further submits that the protest petition filed by the opposite party no. 2 has been treated as complaint case and without complying the provisions of section 202(2) Cr.P.C. all the witnesses of the complaint have not been examined, therefore, the summoning order suffers from illegality and the continuance of proceedings amounts to abuse of process of law hence is liable to be quashed.

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Learned AGA as well as learned counsel for the opposite party on the other hand submits that there is no illegality or infirmity in the aforesaid order as after filing a protest petition the same has been treated as complaint and after recording the statement u/s 200 and 202 Cr.P.C., the applicants have been summoned, therefore, the relief as prayed cannot be granted. Learned AGA further submits that once a final report has been submitted by the police, the Magistrate can take cognizance on that as congnizance taken is of an offence and not an offender. It is settled position of law that when a report forwarded by the police to the Magistrate is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either accept the report and take cognizance of the offence and issue process, or may disagree with the report and drop the proceeding, or may direct further investigation under section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he

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has again an option of adopting one of the three courses open i.e. he may accept the report and drop the proceeding; or he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or he may direct further investigation to be made by the police under section 156(3). The position is, therefore, now well settled that upon receipt of a police report under section 173(2) a Magistrate is entitled to take cognizance of an offence under section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, where the Magistrate decides not to take cognizance and to

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drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of an opportunity of being heard in the matter becomes mandatory.

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The other situation is where the protest has been filed which and the Magistrate treats the same as complaint, he would have to follow the procedure of section 200 and 202 of the Code. Thus, the complainant and his witnesses have to be examined. The present protest petition filed by the informant fulfill the requirements of the complaint, therefore, the same was treated as complaint and after recording the statements of complainant as well as the witnesses u/s 200 and 202 Cr.P.C. respectively, the applicants have been summoned.

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Learned counsel for the applicants submits that as requirement u/s 202(2) all the witnesses of the complainant associated or connected with his interest and those witnesses who are material and relevant to prove prosecution case were not examined especially in a case exclusively triable by the court of session, that as per the provisions contained in Section 202(2), it is provided that if it appears to the Magistrate that the offence complained of, is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

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The counsel for the opposite party submits that it is not mandatory for the complainant to examine all the witnesses named in the complaint and he has a choice in the matter, and therefore, there is no illegality or infirmity in the aforesaid order and the continuance of proceedings. In support of his argument he has placed reliance in the Case of Dudh Nath Mishra vs. State of U.P., 2003 Allahabad Law Journal 55 so also in case of Chhotey Lal s/o Parmanand vs. State of U.P. & Smt. Rati Basor w/o Hasmukh Basoi, 2006 Cr.L.J. 2265 , in cae of Abdul Hamidkhan Pathan & Others vs. State of Gujarat & Others,

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1989 Cr.L.J. 468 (Guj. DB) , and in case of Kishor Singh & Etc. vs. Sudama Prasad & Others, 2002 Cr.L.J. 802 (MP). He further submits that if Magistrate does not comply the provisions of Section 202(2) Cr.P.C. to examine all the witnesses on oath, it would not by itself vitiate the proceedings, the aforesaid has been held in the judgment of Hon'ble Apex Court in case of Rosy and another Vs. State of Kerala and others 2000(1) SCR 107.

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Lastly learned AGA submits that once a protest petition has been filed and after recording the statement u/s 200 and 202 Cr.P.C., the concerned Magistrate finds prima facie case is made out, he is not bound by the opinion of Investigating Officer which is found after recording the statements of witnesses u/s 161 Cr.P.C. Learned AGA further submits that the power vested in the High Court u/s 482 Cr.P.C. for quashing the initiation of prosecution against the accused, at the stage of issuing process, or at the stage of committal, or at the stage of framing of charges, all stages before the commencement of the actual trial, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. Placing reliance upon the judgement of Hon'ble Apex Court, passed in Rajiv Thapar & Ors Vs. Madan Lal Kapoor (Criminal Appeal No......... of 2013, arising out of SLP(Crl) no. 4883 of 2008, decided on 23.01.2013) learned AGA submits that the aforesaid powers for quashing the proceedings should be invoked with care and caution as has been held as under:-

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"22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages

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referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -

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482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."

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In view of the aforesaid facts, the prayer for quashing or setting aside the entire proceeding as well as impugned order dated 26.08.2022 passed by learned Chief Judicial Magistrate, Baghpat, is refused as I do not see any illegality, impropriety and incorrectness in the impugned order or the proceedings un der challenge, hence, the application u/s 482 Cr.P.C. is dismissed .

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Order date : 13 / 4 / 2023

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Arti

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Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad

Kanwarpal@ Lala and 2 Others v. State of U.P. and Another

Case brief

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Kanwarpal@ Lala and 2 Others v. State of U.P. and Another

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