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

R.K. Rastogi, J.—This is a revision against the order dated 7.11.2005, passed by the Judicial Magistrate-II, Jaunpur in Complaint Case No. 1065 of 2005, Indrapal v. Shreepal and Ors. Complaint Case No. 1065 of 2005, Police Station Sikrara, district Jaunpur under Sections 323, 324, 394, 504 and 506, I.P.C.

The facts relevant for disposal of this writ petition are that on 27.4.2005 the complainant opposite party No. 2 moved an application u/s 156(3), Code of Criminal Procedure against the revisionists with these allegations that he was employed in the Railway Protection Force and after retirement he came to his village Samaspur, P.S. Sikrara district Jaunpur to reside at his ancestral house. His brother Sripal and his (Sri Pal''s) two sons namely Sri Maya Shankar and Uma Shankar used to torture him. On 23.4.2005 at about 4 p.m. a quarrel took place between the ladies of both the houses on account of some dispute between their children and at that time the accused threatened to see him. On 24.4.2005 at about 6.30 p.m. the complainant Indrapal, after providing grass to his buffalo, was removing it from the nand. At that time Sripal and his son Uma Shankar having lathis in their hands, reached there and threatened to kill him and started beating him with lathis. They also snatched Rs. 1,000 from him which he had kept in the upper pocket of his shirt. The complainant shouted for help. Then the witnesses Ajai Kumar, Jagdish Prasad, Amarnath and Chulbul reached there and saw the incident. The accused threatened him that if he lodges any report against them at the police station, he would be killed. The complainant could not go any where in the night due to fear of the accused. On the next day he went to the hospital and got his injuries examined, and then the information of the incident was given to the S.P., Jaunpur by registered post but no action was taken. It was, therefore, prayed that the S.O., Sikrara, may be directed to register the case against the accused and investigate the same.

Learned Magistrate, after hearing the complainant, rejected the above application vide order dated 11.5.2005 in which he observed that both the parties belong to one family and it was alleged that the accused had robbed Rs. 1,000 from the complainant which he had kept in his pocket. The Magistrate further observed that this allegation of robbery appears to have been made with a view to make the case cognizable by the police, otherwise there was no justification for keeping Rs. 1,000 in the pocket of shirt while providing fodder to buffalo in the evening. It was also observed that the complainant may, if he so desires, file a complaint case against the accused persons. With these observations the application was rejected. Aggrieved with the above order the accused revisionist filed Criminal Revision No. 439/05 before the Sessions Judge, Jaunpur. This revision was heard and decided by Sri R. P. Tripathi learned Sessions Judge, Jaunpur, vide his judgment and order dated 11.8.2005. He agreeing with the view of the learned Magistrate expressed his opinion that the allegation of robbery of Rs. 1,000 did not appear to be true. He found no illegality in the order of the learned Magistrate. He, therefore, dismissed the revision.

Thereafter the complainant filed a complaint in the court of Judicial Magistrate-II, Jaunpur under Sections 323, 324, 394, 504 and 506, I.P.C. with the similar allegations. It was also stated in the complaint that the accused No. 2 Maya Shankar was armed with a gandasi at the time of incident and he had used that a gandasi in the incident. The learned Magistrate, after recording the statement of the complainant u/s 200, Code of Criminal Procedure and of his witnesses u/s 202, Code of Criminal Procedure was of the view that a prima facie case under Sections 323, 324, 394, 504 and 506, I.P.C. was made out against the accused. He, therefore, summoned them vide his order dated 7.11.2005. Aggrieved with that order the accused filed this revision.

I have heard the learned Counsel for the revisionist as well as the learned A.G.A. for the State and the learned Counsel for the opposite party No. 2.

It was submitted by the learned Counsel for the revisionist that actually no case was made out against the accused persons and the learned Magistrate erred while summoning the accused persons. He further submitted that the allegation of robbery was not believed by the courts below while hearing the application of the complainant u/s 156(3), Code of Criminal Procedure and so there was no justification for summoning the accused u/s 394, I.P.C. It was further submitted that there was no allegation in the application u/s 156(3), Code of Criminal Procedure that any of the accused was armed with gandasi and the only allegation against the accused in that application was that they were armed with lathis, and so the allegation that the accused Maya Shankar was armed with gandasi is an afterthought in the complaint. He further pointed out that in the injury report of the complainant, the Doctor has expressed his opinion that both the injuries of Indrapal were caused by some pointed object. He submitted that neither lathi nor gandasi is a pointed object and so it was not clear as to how Indrapal had received these injuries from a pointed object upon his body, and the learned Magistrate did not consider this aspect of the case that the injury report was not corroborating the prosecution case, and so he had erred in summoning the accused persons.

On the other hand the learned Counsel for the opposite party No. 2 submitted that a prima facie case was made out against the accused persons and the learned Magistrate committed no legal error by summoning the accused persons and the evidence is not to be examined on merits at the stage of summoning the accused persons. It is true that at the stage of summoning the accused, the evidence produced from the complainant''s side is not to be assessed on merits and the criteria for summoning the accused is whether unrebutted allegations made in the complaint and in the statements of the complainant and his witnesses could result in conviction of the accused. If the reply is in affirmative then the accused is to be summoned and if it is in negative then the accused is not to be summoned and the complaint is to be dismissed. It is to be seen that in the present case the Magistrate as well as the Sessions Judge both had expressed an opinion on the application u/s 156(3), Code of Criminal Procedure that the allegation of robbery of Rs. 1,000 did not appear to be probable and believable and it appeared to have been levelled with a view to make the case cognizable. This aspect of the case was not considered by the learned Magistrate while passing orders for summoning the accused persons. Similarly there was no allegation in the application u/s 156(3), Code of Criminal Procedure that the accused Maya Shankar was armed with gandasi and the allegation in that application was that he was armed with lathi only. This aspect of the case was also not considered by the learned Magistrate. It is also to be seen that in the injury report of the complainant it was stated by the Doctor that his both the injuries were caused by a pointed object but neither lathi nor gandasi are pointed object, and this aspect of the case was also not considered by the learned Magistrate.

It is true that the defence of the accused is not to be considered at the time of summoning the accused and they have got no right to say at that time, but if there is infirmity in the prosecution case, that aspect is to be considered by the learned Magistrate, and then suitable orders should be passed in the case. In this case, the learned Magistrate has not complied with the above requirement of law, hence the order passed by the learned Magistrate cannot be sustained and is set aside. The matter is remanded to the court of the Magistrate for a fresh order after considering various aspects of the prosecution case as pointed out above.

Accordingly, the revision is allowed. The order dated 7.11.2005, passed by the Judicial Magistrate-II, Jaunpur in Complaint Case No. 1065 of 2005, Indrapal v. Shreepal and Ors. Complaint Case No. 1065 of 2005, Police Station Sikrara, district Jaunpur under Sections 323, 324, 394, 504 and 506, I.P.C is set aside and the learned Magistrate is directed to pass suitable orders after hearing the complainant in the light of the observations made hereinabove.