Satya Narain and Others vs State of U.P.

D.P.S. Chauhan, J.—This is a petition u/s 482 Code of Criminal Procedure for quashing the order dated 19-3-1986 passed by the Special Judge, Etawah, in case No. 32 of 1986, arising out of Crime No. 162 of 1984, u/s 396 IPC Police Station Civil Lines, Etawah.

The fact in brief leading to the present case are:

One Mahesh Kumar lodged a FIR at Police Station Civil Lines, Etawah, on 6th September, 1984, u/s 396/397 IPC but during the pendency of the investigation one Har Naraia died and as a consequence whereof, the charges were coverted into one u/s 396 IPC. The present applicants are named in the first information report.

During the investigation, names of following persons, namely - Nepal Singh, Sakatua, Daya Ram, Ashok, Shiv Charan, Kailash, Mahesh. Tufan Singh, Gaya Prasad, Jagannath and Ramesh, came into light. Accused Ramesh was absconding inspite of the proceedings u/s 82/83 Code of Criminal Procedure. Remaining ten accused persons were put for identification, but the prosecution witnesses knowingly did not recognize anybody as the complainant on account of enmity wanted to get them challened. Therefore, the ten accused persons vide report dated 16-8-1985 were recommended for discharge u/s 169 Code of Criminal Procedure. Accused Ramesh was not likely to be arrested and the complainant''s witnesses would not likely to recognize him as they have already told and since about 15 months have elapsed, even otherwise there is no chance of success as such an evidence would be of no value. The investigation on FIR was closed and prayed that it may be accepted.

After receiving the final report u/s 169 Code of Criminal Procedure. The Judge called the complainant and heard him and after hearing him summoned the applicants to face trial u/s 396 IPC.

It was stated in the petition that when the order summoning the accused persons was passed, there was no case diary before the court and the court did not examine the complainant on oath, or any of the witnesses before passing the impugned order. Even the complainant did not file his, or any of his witnesses'' affidavit where on he wanted to rely on and examine during the trial. It is also stated that when the order summoning the accused persons was passed, there was no material before the court except the argument of the complainant so to record the satisfaction that a prima facie case against the applicants u/s 396 IPC made out. It is further stated that the court cannot summon the applicant without examining the complainant and witnesses on oath under Sections 200/202 Code of Criminal Procedure. The impugned order says that considering the circumstances that the complainant and his family members are already to support the prosecution case, the final report is not accepted and it is a fit case where the cognizance would be taken against the accused persons. This order dated 19-3-1986 was based on the facts that the complainant Mahesh Chand appeared had stated that actually the Investigation Officer had not made any investigation, but suo moto on his own prepared the statements of the witnesses. His family members are ready to depose against the accused persons, who committed dacoity due to enemity.

The Etawah is the district covered by the U.P. Dacoity Effected Area Act 1983 vide notification No. 8111-P/VIII-3/81 dated November 5, 1981 and the case is triable by the Special Court. Accordingly the cognizance was taken by the Special Judge in the present case.

In A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, the Supreme Court has observed;

As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the Statute setting up the court. Except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hide bound by the terminological status description of Magistrate, or a court of sessions. Under the Code it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied.

The Petitioners'' objections are two fold - (1) Whether the order summoning the applicants can be justified when there was no material before the Special Judge such as case diary and the complainant not having been examined on oath, nor any of his witnesses, nor even there was any affidavit of any body so to disclose that he wanted to rely during the trial the specified witnesses and (2) When the impugned order was passed, there was no material before the court except the argument of the complainant to record the satisfaction that prima facie case against the applicant u/s 396 IPC is made out and without examining the complainant and witnesses on oath under Sections 200/202 Code of Criminal Procedure the order for summoning the accused-persons could not have been passed.

The counter objection from the complainant''s side is that since the order summoning the accused persons was passed u/s 204 Code of Criminal Procedure, the remedy available to the accused was by way of revision and in this view of the matter the present Petitioner u/s 482 Code of Criminal Procedure is incompetent.

So far as the question of material is concerned the final report after investigation as required u/s 173 Code of Criminal Procedure was before the Magistrate which contains the FIR and the other documents such as the statements of the witnesses u/s 161 Code of Criminal Procedure and also the documents relating to the identification.

When the final report is submitted, then four courses are open:

(i) Court may decline to accept the police report and direct the police to make further investigation u/s 156(3) Code of Criminal Procedure,

(ii) If the evidence disclosed in the final report constituting an offence 191(b) despite the police report to the contrary.

(iii) in the case the final report does not set out the facts constituting the offence but the Magistrate, after perusing the police record before him, has reason to believe that offence has been committed, he may take cognizance, and,

(iv) lastly he may accept the report as submitted by the police on being satisfied that the report is not tainted one.

In the present case the FIR itself disclosed the names of the certain accused persons and there was no question of their identification. Apart from this, the FIR also disclosed the names of the witnesses who are inmates of the complainant''s house. The Judge naturally taking all these factors and the police record before him as well as the statement of the complaint considered it a case for summoning the accused which he accordingly did under its order dated 9-3-1986. So it is not a case that the Judge passed the order without there being any material. There was no question of examination of the witnesses, or the complainant, or filing of the affidavit at this stage as it was not a complainant''s case.

So far as the maintainability of the petition u/s 482 Code of Criminal Procedure is concerned, for exercise of inherent jurisdiction of this Court in the circumstances when the remedy of revision which was available to the applicants has not availed, would it be proper to exercise the power. The Supreme Court in Raj Kapoor v. State (Delhi Administration) 1980 SC 258 has observed:

Even so, the general principle pervades this branch of law when a specific provision is made easy resort to inherent power is not right except under compelling circumstances.

In the present case no compelling circumstances have been disclosed for exercising inherent powers by this Court, specially when the Petitioners on their own have not availed the remedy available to him under the statute by way of revision

Under the circumstances, I do not find it a fit case for interference in exercise of inherent powers u/s 482 Code of Criminal Procedure. The application is accordingly rejected. The interim order dated 19-3-1986 is discharged.