Laxmi Narayan Upadhyay vs State of U.P. and Another

Yogendra Kumar Sangal, J.—Heard learned Counsel for the applicant, learned Counsel for the opposite party No. 2, learned A.G.A. for the State and perused the record.

This is an application u/s 482, Code of Criminal Procedure with the prayer to quash the order dated 9.12.2009, passed by Additional Chief Judicial Magistrate, Hathras in Case No. 1448 of 2009, Anil Bahadur v. Laxmi Narayan Upadhyay under Sections 323, 325, 342, 452, 504 and 506, I.P.C., Police Station Hathras Gate, district Mahamayanagar pending in the Court of A.C.J.M., Hathras.

As per prosecution case, a report was lodged at the police station on 12.6.2009 by the Respondent No. 2 with the averments that applicant Laxmi Narayan who is a practising advocate in the Court pressed him to sell his house for Rs. 40,000 for which he was not agreed. On 6.6.2007 at about 8 a.m. Laxmi Narayan and his brother-in-law (sala) Tinkal etc. came at the house of the informant. They were having ballam, phawada etc. in their hand entered into the house and pressed them for executing a sale deed in their favour and on their hue and cry people assembled there. Accused persons confined his children inside the room and closed the door of the house from outside. Electric connection was also disconnected. On telephonic call, on receiving information he informed his presiding officer of the Court, after his due permission, came to his house. Four persons from his family received injuries in the occurrence. On his report a case was registered against the accused persons. As earlier to this case another case regarding the occurrence was also registered at the same police station at Crime No. 561 of 2009 on the F.I.R. of Tinkal against Amit etc. for the offence under Sections 147, 452, 329, 504, 506 and 352, I.P.C. so crime number of this case was allotted 561A of 2009. Record shows that after investigation in the matter Crime No. 561A of 2009, police has submitted final report. A protest petition was filed by the Respondent No. 2 against this final report. After hearing in the matter, learned Magistrate found that from the facts given in the F.I.R. and evidence collected by the Investigating Officer during the investigation and also perusal of the injury report of the victims of the case, prima facie case is made out against the accused persons and both the accused were summoned to face trial for the offence under Sections 323, 327, 342, 504 and 506, I.P.C. Aggrieved by this order, this petition u/s 482, Code of Criminal Procedure has been filed.

It is undisputed fact that earlier to the report of the Respondent No. 2 another report at Crime No. 561 of 2009 was also registered at the police station and after completing investigation, police of the P.S. concerned had submitted charge-sheet against the accused persons for the offence under Sections 147, 452, 504, 506 and 352, I.P.C.

Learned Counsel for the applicant argued that F.I.R. of the present case against them was lodged only as counter-blast of the F.I.R. already registered at police station against the sons of the Respondent No. 2. In Case Crime No. 561 of 2009, Tinkal received grievous injury as reported by Doctor (Annexure-1). On their report after investigation, charge-sheet was submitted against the accused persons of that case after recording statement of witnesses which is Annexure-4 of the application. F.I.R. lodged against applicants is false, fabricated and having concocted allegations. Only simple injuries were found on the body of the victim by the Doctor and statement recorded by the Investigating Officer of Amit etc. u/s 161, Code of Criminal Procedure was disbelieved by the Investigating Officer and Investigating Officer found that a report was lodged as counter-blast with malicious and nefarious intention so he submitted final report in the matter. Learned Magistrate without going into the material on record, without application of judicial mind recorded finding and summoned the applicant. Applicant No. 1 Laxmi Narayan Upadhyay is a senior practising advocate in the Court Hathras and he is a law abiding citizen and no such offence was committed.

Learned Magistrate after perusing the record of final report case and also seeing the injury report of the injured of the case and also considering the nature of injuries received by the victims of the case with giving detailed reason after rejecting the final report, ordered for summoning the accused persons for their trial in the matter. In passing the impugned order, learned Magistrate seen the cross-case file which is clear from the order. Learned Counsel for the applicant argued that it is established law that in protest petition case if some extraneous matter evidence or documents are considered by the learned Magistrate for summoning the accused persons this order could not be held legal, valid and proper. Learned Magistrate should have adopted the procedure of complaint case in such matter.

On the other hand, learned Counsel for the Respondent argued that from the file of cross-case, learned Magistrate has not considered any document and evidence. Simply he observed that undisputedly, some occurrence between parties to case had taken place on the day and charge-sheet has been submitted in cross-case which was also clear from this fact also that Crime No. 561A of 2009 was allowed to this case. It cannot be said that for order of summoning the accused in this case extraneous matter was considered.

Undisputedly, present case is a cross-case which was registered on the F.I.R. lodged by one of the accused of the present case. It is established law that if for certain occurrence, there are cross-version, both the versions should be investigated and if possible should be tried by the Court simultaneously, to see which party was aggressor in the occurrence. Detailed and sufficient reasons are given by the learned Magistrate in rejecting the final report and summoning the accused persons for trial. No illegality, invalidity and impropriety is found in the impugned order passed by the learned Magistrate.

From perusal of the material on record and looking into the facts and circumstances of the case at this stage, it cannot be said that no offence is made out against the accused persons.

All the submissions made at the Bar relates to disputed question of facts which cannot be adjudicated by this Court u/s 482, Code of Criminal Procedure At this stage, only a prima facie case is to be seen in the light of the law laid down by the Apex Court in case of R.P. Kapur Vs. The State of Punjab, There may be disputed defence of the accused but it cannot be considered at this stage, it will be seen at the proper time and stage of the case. It is established law that in cross-case version of an occurrence both parties should be given opportunity to place their case before Court and Court may take its own decision which party was aggressor or it is a case of free fight. In the aforesaid facts and circumstances and considering the arguments of parties counsel, I do not find any ground to quash the impugned order dated 9.12.2009 for summoning the accused-applicants.

Application is hereby dismissed, accordingly.