Shubham vs State Of Uttarakhand And Another

Ravindra Maithani, J

This petition is preferred against the Judgment and Order dated 21.12.2021, passed in Complaint Case No.373 of 2011, Kaluram vs. Suman and others, under Sections 323, 452, 504, 506 IPC by the court of Additional Chief Judicial Magistrate, Laksar, District Haridwar.

Heard learned counsel for the parties and perused the record.

Facts necessary to appreciate the controversy briefly stated are as follows. The respondent no.2, Kaluram (for short, “the complainant”) filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, “the Code”) against four persons. It was treated as a complaint. After inquiry under Sections 200 and 202 of the Code, by an order dated 13.06.2013, four persons were summoned to answer the accusation. One of them is Suppa S/o Suman. In fact, in their application under Section 156(3) of the Code, one of the accused is named as Suppa S/o Suman. It appears that Suppa S/o Suman could not be served. It also appears that on behalf of the complainant it was submitted that the petitioner be summoned but, on 15.01.2018, the court observed that there is no evidence to suggest that petitioner is Suppa S/o Suman. The court on that date ordered that the trial shall proceed against Suppa S/o Suman and evidence against him shall be recorded in his absence, as provided under Section 299 of the Code. During the course of recording of the evidence under Section 244 of the Code, an application along with an affidavit was filed by the complainant that the correct name of Suppa is Shubham, who has shifted in District Bijnor. Therefore, the name of Suppa be corrected as Suppa alias Shubham. It is supported by an affidavit with some documents. By the impugned order, the complainant has been directed to issue fresh summon in the name of the petitioner also.

Learned counsel for the petitioner would submit that the petitioner is not named as Suppa. He is not Suppa. At one stage, the court had on 15.01.2018, recorded that there is no evidence to suggest that the petitioner is Suppa and directed that the case shall proceed as per the provisions of Section 299 of the Code. Therefore, it is argued that, that order may not be reviewed to summon the petitioner.

It is not a matter of reviewing any court’s order. In the application under Section 156(3) of the Code, one of the named person is Suppa S/o Suman. It is the case of the complainant that he was assaulted by Suman, Suppa S/o Suman and others. Summons were issued but, they could not be served on Suppa. At one stage, it was told by the complainant that, in fact, the petitioner is also known as Suppa but, at that stage, as stated, the court directed to proceed against Suppa under Section 299 of the Code for recording his evidence. During the course of recording evidence, it was again revealed that one of the attacker was son of Suman. It may be noted here that all the parties are residents of the same village.

The court in the impugned order recorded that it is not disputed that there is any other son of Suman named Suppa. The court also observed that it is also not objected to by the petitioner that Suppa and Shubham are two distinct persons.

It is not a case of either reviewing the order or changing any of the accused. The identification is not in dispute. It is consistent case of the complainant that he was assaulted by Suman, his son and others. Initially, Suppa S/o Suman is named as an accused. The case is more than 10 years old. Suppa alias Sbubham could not be served. Now complainant says that Suppa is, in fact, the petitioner, who is staying in his village. Therefore, an order to record the evidence in the absence of an accused does not bar the court to summon the accused, if he is traceable, subsequently. This is what is done by the Court. Instead of recording the evidence in the absence of the petitioner, the Court has directed that let he be summoned

Therefore, this Court is of the view that there is no reason to make any interference in the impugned order. Accordingly, the petition deserves to be dismissed at the stage of admission itself.

The petition is dismissed in limine.