Pradeep Kumar and Others vs State of U.P. and Another

Vinod Prasad, J.—The present application has been filed by Pradeep Kumar, Rajeev Kumar, Vinay Kumar, Dharma Veer and Rajesh, with the prayer to set aside the judgment and order dated 4 2.2006, passed by Additional Sessions Judge/Special Judge, E.C. Act, Bulandshahr, in Criminal Revision No. 482/05, Pradeep Kumar and Ors. v. State of U.P. Criminal Revision No. 482/05 The applicants have also prayed for setting aside the order dated 16.8.2005, passed by Judicial Magistrate 1st, Bulandshahr in Case No. 1765/05 under Sections 147, 148, 149, 323, 504, 506 and 395, I.P.C., P.S. Dibai, district Bulandshahr. By the aforesaid order dated 16.8.2005, the Judicial Magistrate has summoned the applicants for offences under Sections 147, 148, 149, 323, 504, 506 and 395, I.P.C. and vide impugned order dated 4.2.2006 the Additional Sessions Judge/Special Judge, E.C. Act, Bulandshahr has rejected the revision filed by the accused challenging the aforesaid summoning order passed by the Judicial Magistrate. As the present applicants were summoned as an accused and their revision before the lower revisional court was also rejected, hence this application u/s 482, Code of Criminal Procedure for quashing of both the orders.

The facts encapsulated are that an F.I.R. was lodged on 9.3.2002 at 4 p.m. by the informant Respondent No. 2 Manoj Kumar in respect of an incident alleged to have taken place on 10.1.2002 at 10.30 a.m., which was registered as Crime No. 145/05 under Sections 147, 148, 149, 323, 504, 506 and 395, I.P.C, at P.S. Dibai, district Bulandshahr. In the aforesaid F.I.R. the informant Manoj Kumar had made the present applicants an accused. It is important to note that the two applicants Rajeev Kumar and Vinay Kumar are the real brothers of the informant. The thumbnail sketch of the fact mentioned in the F.I.R. was that the informant was also a partner in Kailash Gyan Talkies, which is situated on Plot No. 203 Railway Road, Dibai. On 10.1.2002 at 10.30 a.m. he had gone to the accused Rajeev and Vinay Gupta who are his real brothers to inquire about the illegal construction over the plot as well as regarding the sale of the two generator sets, both belonging to the said Talkies. There, he was assaulted by the applicants with kicks, fists, lathi and danda and was also vituparised and threatened for life by the accused who were variously armed. Rajeev Kumar had a katta in his hand and rest of the accused persons were armed with lathi and danda. Rajeev Kumar and Vinay broke the lock of the godown of the informant, looted his 687 bottles of Pepsi soft drink, snatched away his golden chain and Rs. 213 from the pocket of his shirt. The informant received injuries in the incident and got himself medically examined at P.H.C. on 10.1.2002. On alarm being raised by the informant Hari Om, Titu and many Ors. rushed to the spot and saved the informant. As the report of the informant was not recorded by the police hence he filed an application before the higher officers alongwith his injury report but all in vain, therefore, he filed an application before the S.S.P., Bulandshahr and at his instance the F.I.R. of the informant was registered against the culprits. A copy of the said F.I.R. is Annexure-1 to the affidavit filed in support of this application. The medical examination report of the informant has not been annexed alongwith the present application by the applicants. The police of Police Station Dibai, after the investigation submitted a final report in the crime vide Annexure-2 to this application. The protest petition of the informant dated 17.9.2002 in the said F.R. Case No. 17 of 2002 was treated as complaint by the Additional C.J.M., Anoopshaher titled as Manoj Kumar v. Rajeev Kumar and Ors. F.R. Case No. 17 of 2002. The statement of the informant was recorded u/s 200, Code of Criminal Procedure and that of his witnesses Hari Om, Dr. Awadh Bihari. Hari Shankar Varshney and constable Deep Chand Singh u/s 202, Code of Criminal Procedure All the above witnesses supported the informant''s version in all material particulars. Dr. Awadh Bihari stated that he had examined the injured Manoj Kumar on 10.1.2002 at 4 p.m. and he had received four injuries. Additional Chief Judicial Magistrate vide his order dated 29.8.2003, summoned the present applicants for the offences mentioned above. Accused filed an application for granting time but their application was rejected on 15.12.2003. Aggrieved by the both the above orders dated 29.8.2003 and 15.12.2003, the applicant accused Pradeep Kumar filed a revision before the Sessions Judge, Bulandshahr being Criminal Revision No. 71/04. Additional Sessions Judge, Bulandshahr, vide his judgment and order dated 25.7.2005 (Annexure-8) remanded the matter back with a direction that one of the offences was triable by Court of Sessions and the Magistrate had not followed the procedure provided under proviso to Section 202(2), Code of Criminal Procedure therefore, he directed the Magistrate to record the statement of witness Titu s/o Danveer and then pass a reasoned order in accordance with law on the complaint of the Respondent No. 2. After the receipt of the record, the trial court by his order dated 16.8.2005 (Annexure-9) again summoned the applicants as accused for the offences under Sections 147, 148, 149, 323, 504, 506 and 395, I.P.C. In the summoning order the Magistrate has observed that after receiving the record from the lower revisional court, witness Titu had filed an application alongwith an affidavit that he had been wrongly named as a witness in the aforesaid case and the informant had also filed an application that since Titu had connived with the accused persons, therefore, the informant Respondent No. 2 did not rely on his testimony and therefore, Titu be discharged. In this backdrop since the complainant did not rely upon the witness Titu, therefore the Magistrate, on the material available on the record, had passed the summoning order on 18.6.2005 (Annexure-9). Aggrieved by the summoning order (Annexure-9) the present accused applicants preferred a revision being Criminal Revision No. 482/05 which was heard and rejected by the Additional Sessions Judge/ Special Judge E.C. Act, Bulandshahr, vide order dated 4.2.2006 (Annexure-10). Therefore this application for setting aside the impugned orders as is mentioned in the opening part of this judgment.

I have heard Sri Ram Babu Sharma learned Counsel for the applicant, Sri T. B. Islam and Sri M. K. Gupta learned Counsels for the Respondent No. 2 complainant and learned A.G.A. at great length and have gone through the record.

Sri Ram Babu Sharma learned Counsel for the applicants contended that the Magistrate must examine all the witnesses and since the evidence of Titu was not recorded by him, therefore the impugned summoning order as well as lower revisional court''s order, deserve to be quashed. He further, contended that at the stage of summoning the Magistrate must look into the evidence of witnesses, who had not supported the complainant and since the independent witness did not come forward to support the complainant Respondent No. 2, therefore, proceedings should be quashed. He lastly but half-heartedly contended that proceedings are mala fide and deserves to be quashed.

Learned Counsel for the Respondent No. 2 and learned A.G.A., contrarily, submitted that there was no need for the Magistrate to record the statement of Titu since he was not the witness of the complainant and the complainant had discharged him. They contended that under the proviso to Section 202(2), Code of Criminal Procedure the complainant is obliged to examine only those witnesses, on whom he places reliance. They further contended that since proceeding is not mala fide and in any view of the matter cognizable offences are disclosed against the present applicants, therefore, they must be prosecuted. They also contended that the prosecution cannot be nipped into the bud as cognizable offences are disclosed and disputed question of facts cannot be adjudicated upon u/s 482, Code of Criminal Procedure to thwart the legitimate prosecution. They further contended that the present application is devoid of merit and deserves to be rejected.

Considering the first contention of the learned Counsel for the applicants I find no merit in it. The proviso to Section 202(2), Code of Criminal Procedure reads thus:

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.

A bare reading of the said proviso indicates that u/s 202(2), Code of Criminal Procedure the complainant is obliged to examine all his witnesses if the offence is triable by Court of Sessions. The connotation "all his witnesses" means only those witnesses on whom the complainant places reliance. If he does not place reliance on any witness, then he is not obliged to examine that witness under the aforesaid proviso. Any witness on whom the complainant does not place reliance is not "his witness". It is not the mandate of law that the complainant should examine even those witnesses on whom he does not rely and to whom he does not want to produce before the Court in support of his allegations made in the complaint.

Learned Counsel for the applicants has placed reliance on the judgment in Sat Pal and Ors. v. State of U.P. and Ors. LIII 2005 ACC 218. In the aforesaid judgment it has nowhere been held that the complainant is obliged to examine even those witnesses, on whom he does not place reliance and which are not his witnesses. The Apex Court in Rosy and Anr. v. State of Kerala and Ors. XL 2000 ACC 444, has held:

I wish to add that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses.... I reiterate that if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings.

Further, in the case of Satpal (supra), this Court has also held that unless and until prejudice is caused to the applicant no proceeding can be quashed, merely because of non-examination of some of the witnesses by the complainant on whom he does not repose trust and does not want to examine during the trial. Thus, the aforesaid judgment is of no help to the present applicants and the first contention of the learned Counsel for the applicant being contrary to the enactment itself is meritless and is consequently rejected.

Considering the second contention of the learned Counsel for the applicants that the Magistrate, at the stage of summoning, should also take into consideration the fact that the independent witness had not supported the complainant''s version and therefore he should not summon the accused is concerned, the same also does not have any substance in it. At the stage of summoning u/s 204, Code of Criminal Procedure the Magistrate is required only to see as to whether any triable offence is made out from the complaint and the statements recorded under Sections 200 and 202, Code of Criminal Procedure or not? At that stage his power does not travel beyond that scope. This view is no longer res integra and has been cemented by volumes of decisions of both by this Court as well as Apex Court. The contention of the learned Counsel for the applicants thus is de hors the law and is hereby rejected.

The last contention of the learned Counsel for the applicants is that the proceeding is mala fide and deserves to be quashed. This submission also does not hold good. Since cognizable offence is disclosed by the evidence produced by the complainant Respondent No. 2, in the present case, therefore, there is no reason to dub the prosecution as mala fide. The disclosure of the cognizable of offence on the facts of the case by itself is an ample proof of the fact that the prosecution is not mala fide. Thus, this argument of the learned Counsel for the applicants is also meritless and is rejected. There was no other point, which has been urged by the learned Counsel for the applicants.

In view of what has been stated above, I do not find any merit in this application, which is liable to be rejected.

This application is rejected. Stay order granted by this Court on 20.2.2005 is hereby vacated.

Let a copy of this order be sent to the trial court within a period of one week from today for further action.