Shekhar and Others vs State of U.P. and Another

Ravindra Singh, J.—This application has been moved by the applicants, Shekhar, Achhaibar and Manka with a prayer to quash the proceedings of Complaint Case No. 3136 of 2001, Nirmal v. Vindhyachal and others Complaint Case No. 3136 of 2001, under Sections 147, 148, 149 and 304 of I.P.C., Police Station Kotwali, District Deoria pending in the Court of learned Chief Judicial Magistrate, Deoria.

The facts in brief of this case are that the complaint dated 18.2.1984 has been filed by O.P. No. 2, in the Court of learned Chief Judicial Magistrate concerned, alleging therein that he was married with Smt. Sonia, from their wedlock, a male child namely Bachhan was born, who was aged about 20 years on the day of alleged incident dated 26.11.1982. The complainant was ailing, due to which his wife started to lead an adulterous life and she performed her re-marriage with a person residing in village Arila where she remained for some period, thereafter, she again re-married with a person residing in village Amit-heen. The accused Jamuna Tiwari is resident of village Amit-heen, he is having his relation with Vindhyachal Misra, residing in the same village of the complainant, all the accused persons were pressurising the first informant and his son Bacchan for keeping the wife at their house, for which the complainant and his son Bacchan were not agreed. The wife of the complainant was kept at his house by the accused applicant Achhaibar, due to this enmity, on 26.11.1982 at about 11.00 a.m., the applicants and other co-accused persons have beaten the deceased Bachhan by using lathi, kicks and fists blows, consequently, he became unconscious, when the complainant came to his house after pulling rickshaw, he provided medical aid to his injured son, on the next day of the alleged incident, the deceased Bachhan was brought to the district hospital where he was admitted but unfortunately on 29.11.1982 at about 2.00 p.m., he succumbed to his injuries whose post mortem examination report was conducted on 30.11.1982, its F.I.R. was lodged but under the influence of the accused persons, the I.O. submitted the final report. Thereafter, the complaint of the present case has been lodged by O.P. No. 2, the statement of O.P. No. 2 was recorded u/s 200, Cr. P.C. and the statement of P.W. 1 Sattraj, P.W. 2 Sanichari, P.W. 3 Harish, P.W. 4 Kaiphulwara were recorded u/s 202, Cr. P.C., a copy of the post mortem examination was filed as documentary evidence, after considering the same, the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Deoria summoned the applicants on 5.4.1999 to face the trial for the offences punishable under Sections 147, 149 and 304, I.P.C. Being aggrieved from the order dated 5.4.1999, the present application has been filed by the applicants with a prayer to quash the proceedings against them pending in Complaint Case No. 3136 of 2001.

Heard Sri B. N. Singh, Sri Umesh Vats, learned Counsel for the applicants, learned A.G.A., for the State of U. P., and Sri Mohan Tiwari, learned Counsel appearing on behalf of opposite party No. 2.

It is contended by the learned Counsel for the applicants that in the present case, F.I.R. has been lodged by O.P. No. 2, after investigation, the I.O. came to the conclusion that no offence has been committed by the applicants, therefore, the final report has been submtited. The complaint has been filed at a very belated stage. The complaint is based on false and frivolous allegations. The allegation that the applicants and other co-accused persons caused injuries on the person of the deceased by using, lathis, kicks and fists blows is absolutely false and baseless, the same is not substantiated by the post mortem examination report because according to the post mortem examination report, the cause of death was due to Tetanus and no ante-mortem injury was found on the body of the deceased, even no mark of any external injury was found on the body, the death of the deceased was not on account of any injury caused on his person but it was due to his illness but without considering all the facts and circumstances of the case, the learned Magistrate concerned has taken the cognizance and summoned the applicants to face the trial which is illegal, therefore, the proceedings pending against the applicants may be quashed.

In reply to the above contentions, it is submitted by the learned A.G.A. and learned Counsel for the O.P. No. 2 that in the present case, the F.I.R. was lodged but under the influence of the applicants and co-accused persons, the I.O. submitted the final report without doing the proper investigation, the O.P. No. 2 lodged complaint when he came to know that the I.O. has submitted the final report. Thereafter, the statements under Sections 200 and 202, Cr. P.C., have been recorded. After considering the same, the learned Magistrate concerned has taken the cognizance and summoned the applicants to face the trial because on the basis of the allegations made against the applicants, prima facie, offence under Sections 147, 149 and 304, I.P.C. is made out. There is no illegality in the prosecution of the applicants, therefore, prayer for quashing the proceedings of the complaint case may be refused.

Considering the submissions made by the learned Counsel for the applicants, learned A.G.A., learned Counsel appearing on behalf of O.P. No. 2 and from the perusal of the record, it appears that in the present case, in respect of the same allegations, the F.I.R. was lodged, after its investigation, the I.O. had filed the final report but in respect of subsequent orders on the final report, no document has been filed by any of the parties. It appears that after considering the complaint and statements recorded under Sections 200 and 202, Cr. P.C., which disclose the commission of offence, learned Magistrate concerned has summoned the applicants to face the trial punishable under Sections 147, 149 and 304, I.P.C. vide order dated 5.4.1999. The learned Magistrate concerned has not committed any procedural mistake in passing the order dated 5.4.1999. It also appears that till the summoning order dated 5.4.1999 no order has been passed on the final report because the learned Magistrate concerned has mentioned in the impugned order that the final report has been misplaced with the connivance of the police officers. In such circumstances, the complainant, O.P. No. 2 was having no option except to lodge the complaint even if the final report was available, it is permissible under the law, for which Section 210, Cr. P.C., is attracted. The learned Magistrate concerned has not committed any error in taking the cognizance and summoning the applicants on the basis of the complaint filed by O.P. No. 2.

So far as, the issue raised by the learned Counsel for the applicants that according to the post mortem examination report, the deceased had died due to Tetanus and no ante mortem injury was found on his body and no other internal damage was found showing that the deceased had died on account of injuries caused by the applicants and co-accused persons by way of using lathis, kicks and fists blows, no offence u/s 304, I.P.C. is made out. To consider this issue, it is necessary to consider the allegations made by the complainant and other witnesses, the specific allegation is made that on the person of the deceased, injuries were caused by the applicants and other co-accused person by using lathis, kicks and fists blows, consequently, he became unconscious, thereafter medical aid was provided to him, on the next day of the alleged incident, he was shifted to the district hospital Deoria where he succumbed to his injuries. On this allegation, the offence u/s 304, I.P.C. is made out, it cannot be disbelieved at this stage, only on the basis of post mortem examination report in which cause of death was due to tetanus and no injury was found on the body of the deceased because the post mortem examination report is also an opinion of the expert. It shall be tested at the stage of the trial and the opinion of the expert is not conclusive. At the stage of taking the cognizance and summoning the accused, the complaint and statements recorded under Sections 200 and 202, Cr. P.C., are taken as true for forming the opinion whether prima facie any offence is made out or not. In the present case, the offence under Sections 147, 149 and 304, I.P.C., prima facie, is made out. The proceedings pending against the applicants in Complaint Case No. 3136 of 2001 under Sections 147, 149 and 304, I.P.C. in the Court of learned Chief Judicial Magistrate, Deoria are not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused.

The interim order dated 3.6.2004 is hereby vacated.

However, considering the facts and circumstances of the case, it is directed that the applicants shall appear before the Court concerned within 30 days from today, till then, the bailable/N.B.W., if issued, against the applicants shall be kept in abeyance. In case the applicants apply for bail, the same shall be heard and disposed of expeditiously, if possible on the same day.

With the above direction, this application is disposed of finally.