Bhagwan Singh and Others vs State of U.P. and Another

B.K. Rathi, J.—This is a petition u/s 482, Criminal Procedure Code for quashing the order dated 3.1.2002, Annexure-9 to the petition passed by Special Judge (D.A.A.), Agra, allowing the protest petition and rejecting the final report and summoning the Petitioners for offences under Sections 147, 148, 149, 307, 302, 394 and 506, Indian Penal Code

I have heard Shri Viresh Mishra, learned senior advocate for the Petitioners and Shri Satish Trivedi, learned senior advocate for Opposite Party No. 2 and the A.G.A. The facts of the case are as follows:

An F.I.R. at Crime No. 219 of 2001 for offences under Sections 147, 148, 149, 307, 302, 394 and 506, Indian Penal Code, was lodged on 10.8.2001 by Ram Khelari Petitioner according to which five persons were murdered by the accused persons, named in F.I.R. and the several other persons were injured. The case on the basis of the F.I.R. of the applicant Ram Khelari was registered, investigated and the charge-sheets have been filed against the accused persons. The opposite party No. 2 also moved an application u/s 156(3), Criminal Procedure Code against the Petitioners for offences under Sections 147, 148, 149, 323, 302 and 394, Indian Penal Code, in which she alleged that the Petitioners robbed ornaments, her mother has been assaulted and her father Bhoom Singh has been done to death. On this application, the learned Special Judge (D.A.A. on 3.9.2001, (Annexure-4 to the petition) directed the police to register the case and to investigate. The police investigated the matter and submitted final report Annexure-5 to the petition. Against this final report, protest petition Annexure-6 to the petition was filed by opposite party No. 2. On this protest petition, the evidence under Sections 200 and 202 of the Criminal Procedure Code was recorded and the Petitioners have been summoned as said above by the impugned order dated 3.1.2002 passed by the Special Judge (D.A.A.), Agra. Request has been made to quash the said order.

The first argument of the learned Counsel for Petitioner is that Special Judge (D.A.A.), Agra, has erred in taking cognizance. The allegation u/s 394 of the Criminal Procedure Code is absolutely vague and false which should be rejected on the face of it. That in the application u/s 156(3), Criminal Procedure Code It has been mentioned by O. P. No. 2 that ornaments of her mother were looted, but no details of ornaments have been given at any stage. That, therefore, prima facie offence u/s 394, Criminal Procedure Code is not made out and remaining Sections are 147, 148, 149, 323 and 302, Indian Penal Code of which Special Judge, Agra, has no jurisdiction to take the cognizance.

I have considered the arguments. It is no doubt true that the details of the ornaments robbed have not been given even in the evidence. However, for this reason at this stage, it cannot be said that no offence u/s 394 of the Criminal Procedure Code has been made out as the allegation is that the ornaments were robbed and it can be decided after evidence. Therefore, the first argument that the Special Judge, D.A.A., Agra, has no jurisdiction to pass any order in the matter cannot be accepted.

The next argument of the learned Counsel is that the offence u/s 302, Criminal Procedure Code is exclusively triable by the Court of Session as mentioned in Schedule I of the Criminal Procedure Code That the entire evidence has not been recorded as provided by the proviso to Section 202, Criminal Procedure Code That no list of witnesses has been filed as required by Clause (2) of Section 204, Criminal Procedure Code Regarding this learned Counsel for the O. P. No. 2 has referred to the copy of the application dated 24.12.2001 moved by the O. P. No. 2 through supplementary counter-affidavit. In this application, O.P. No. 2 has mentioned that in the aforesaid matter, her statement u/s 200, Criminal Procedure Code and statements of witness Rameshwar, Saligram, Vishambhar Singh and Subhash Kumar u/s 202, Criminal Procedure Code have been recorded. That she does not want to produce any other witness and her evidence may be deemed to be closed. It is, therefore, contended that the entire evidence was produced by the O. P. No. 2. In this application, the names of the witness has also been mentioned, therefore, there was no need to submit the separate list of witness.

In my opinion, the argument is not correct. The offence is also u/s 302, Criminal Procedure Code and the Medical Officer who conducted the post-mortem and the officer who prepared the inquest report has not been examined. Therefore, the entire evidence has not been recorded. The provision of Clause (2) of Section 204, Criminal Procedure Code is mandatory, and the accused could be summoned only after the list of witnesses has been filed.

In the circumstances, the impugned order of the Special Judge is bad in law.

The last argument of the learned Counsel for the Petitioners is that the operative portion of the impugned order show that the Petitioners have been summoned by taking cognizance on the protest petition. It is contended that the order has been passed without application of mind by the learned Special Judge (D.A.A.), Agra. The protest petition is Annexure-6 to the petition. In this petition, absolutely no facts regarding the incidence has been mentioned. Only it has been mentioned that the case has not been properly investigated, correct statements of witnesses have not been recorded, therefore, the final report is liable to be rejected. It is relevant to mention that Clause (a) of Section 190, Criminal Procedure Code empowers the Magistrate to take cognizance of an offence upon receiving a complaint of facts which constitute such offence. The complaint has been defined in Clause (d) of Section 2, Criminal Procedure Code In view of the definition, the protest petition Annexure-6 cannot be treated as complaint as no details of commission of offence has been mentioned.

The argument of the learned Counsel for the Petitioners is correct. In the protest petition, the details regarding the offence and the facts have not been mentioned and, therefore, it is not a complaint. The learned trial Judge could have taken cognizance on the application u/s 156(3) of the Criminal Procedure Code in which facts are mentioned and not in protest petition.

In the circumstances, the petition is allowed and the impugned order dated 3.1.2002 is quashed. However, it is clarified that the trial court is free to pass fresh order after removal of the defects as pointed out in the above order in accordance with law.