This petition, under Section 482, Cr.P.C., has been filed by the petitioner with a prayer to quash the charge-sheet dated 01.06.2011 and summoning order dated 08.07.2011 (Annexures No.1 and 2 to this petition) passed by learned Additional Chief Judicial Magistrate-V, Lucknow in Criminal Case No.1950 of 2011 (State Versus Ganesh Dubey and others) arising out of Case Crime No.176 of 2011, under Sections 307, 120-B and 147 IPC, Police Station Madion, District Lucknow. The petitioner has also prayed for quashing of the entire proceedings initiated in pursuance of the aforesaid order and charge-sheet.
The relevant facts for deciding this petition in short are that an FIR has been lodged by Monu Kannaujia alleging therein that Pawan, brother-in-law of the opposite party no.2, is an employee of 'New Krishna Vision', Madion. The accused Sarvesh Nigam, Raj Kumar Yadav, Ranjeet Yadav and Anurag Singh are the employees of 'Mohan Cable'. There was a dispute in between the accused persons and Pawan with regard to distribution of cable connections amongst the customers. On 23.03.2011 at about 7:45 PM, the aforesaid Pawan along with Mukesh and Arun were coming to their house and when they reached near the house of Pawan, the aforesaid named accused, namely, Sarvesh Nigam, Raj Kumar Yadav, Anurag Singh and Ranjeet Yadav started abusing Pawan and questioned as to why, he is laying cables in their area. Raj Kumar Yadav and Ranjeet Yadav asked Sarvesh and Anurag that Pawan himself posing to be a leader hence he be given a lesson. Thereupon, Sarvesh Nigam and Anurag Singh fired upon Pawan with country made pistol. The fire hit the thigh of Pawan . Thereafter, Pawan was admitted in Trauma Centre of Medical College, Lucknow.
The injured Pawan narrated the entire incident to the informant opposite party no.2 Monu Kannojia, disclosing the names of the accused persons and thereafter, a first information report was lodged on the same day at about 11:00 PM under Section 307 IPC against four above named persons.
During the course of investigation, the injured Pawan in his statement disclosed that before the date of occurrence one Mohan Malhotra and the present petitioner Ganesh Dubey threatened him that in case, he interfered in their work, he shall face the dire consequences.
After recording the statements of injured and eyewitness and completing the other formalities, the charge-sheet has been filed on 18.04.2011 against three named accused and Mohan Malhotra . However, the investigation against Anurag Singh and the present petitioner Ganesh Dubey remained continued.
Injured Pawan moved an application dated 19.04.2011 to the Superintendent of Police, Trans Gomati, District Lucknow narrating the story as stated in the first information report and further stated that at the time of lodging the first information report, he could not disclose the whole story due to his serious condition and, therefore, the names of Shantanu Tripathi @ Yogi, Vikas Sharma and Akash Yadav could not be disclosed. Thereafter, supplementary statement of the injured was recorded in the light of the application of injured by the Investigating Officer on 01.05.2013. The Investigating Officer also arrested the aforesaid three co-accused persons and petitioner. Thereafter charge-sheet has been submitted against them including present petitioner Ganesh Dubey.
On the basis of charge-sheet filed by the police, the learned Magistrate took cognizance and passed the impugned summoning order against the accused persons including the petitioner to face trial. Aggrieved by the same, the petitioner filed the present petition.
I have heard Sri Amar Nath Tiwari, learned counsel for the petitioner and Sri Rizwan Kamal, learned A.G.A. for the State. None appeared on behalf of opposite party no.2 despite sufficient service of notice.
It has been contended by learned counsel for the petitioner that the present petitioner is not named in the first information report. During the course of investigation, the only evidence collected against the present petitioner is that Mohan Malhotra and the present petitioner threatened injured Pawan before the present incident of 23.03.2011. The statement to this effect has also been given by informant Monu Kannujia, eye witnesses Mukesh, Arun Kumar and injured Pawan. Apart from it, the evidence, which has been shown by the prosecution against the accused petitioner, is of the confessional statement of the petitioner himself wherein according to the police, he confessed for hatching conspiracy against the injured and the statement of other co-accused in the form of confessional statement made before the police. It has further been contended that even in the subsequent application given by injured Pawan, he disclosed the names of only Shantanu Tripathi @ Yogi, Vikas Sharma and Akash Yadav and not of the petitioner and also even in the subsequent statement of the injured Pawan recorded on 01.05.2011, the named of the present applicant is not found place. The charge-sheet has been submitted before learned Magistrate against the present petitioner Ganesh Dubey without any evidence. Not only this the informant opposite party no.2 has given his affidavit before this court that he do not want to proceed against the petitioner.
It has been further submitted by the Counsel for the petitioner that even if it is presumed that the statement given by the eyewitnesses that Ganesh Dubey has extended threats to Pawan Kumar before the incident do not constitute offence under Section 120B IPC. However, the petitioner has been arrayed as an accused in subsequent charge-sheet being conspirator. Therefore, in the absence of any evidence of conspiracy, the petitioner cannot be compelled to face trial.
In support of his contentions, learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of Harishchandra Prasad Mani and others Vs. State of Jharkhand and another; 2007(1) Supreme 827 wherein the Apex Court has taken a view that if there is no iota of evidence or material against the accused, the order of taking cognizance is liable to be set aside. Learned counsel further relying upon the judgment of the Apex Court in the case of Rajiv Thapar and others Vs. Madan Lal Kapoor; 2013 (1) UPCrR 671 has submitted that the High Court after invoking its inherent powers under Section 482, Cr.P.C. on the basis of reasonable and sound material produced by accused can dismiss the case of such nature. Learned counsel also relied upon the judgment of the Apex Court in the case of State of Gujarat Vs. Mohammed Atik; 1998 Law Suit (SC) 413 and submitted that the statement recorded before the Police Officer is not admissible in evidence in view of the provisions contained in Section 25 of the Evidence Act.
It has been further submitted by the Counsel for the petitioner that in this case, it has not been shown before this Court that statement given by the co-accused or by the present petitioner was admissible under any of the provisions of the Indian Evidence Act or in any other law for the time being enforced. It has also not been shown that the confessional statement of any of the co-accused has been recorded under Section 164, Cr.P.C. There is no evidence by which it could be inferred that the present petitioner is involved in the criminal conspiracy. No evidence of conversation of the present petitioner with any other accused or with any person was brought on record to establish hatching of criminal conspiracy against injured Pawan. In view of above, summoning order passed by learned additional Chief Judicial Magistrate against the present petitioner would be an abuse of process of law.
It has been submitted by learned counsel for the petitioner that in this case, counter affidavit has also been filed on behalf of opposite party no.2 . In paragraph 5 of the affidavit filed on behalf of informant, opposite party no.2, it has been categorically stated that the present petitioner Ganesh Dubey has neither threatened nor hatched any conspiracy nor is involved in this crime and if, the Investigating Officer during the course of investigation recorded the statement of injured pertaining to involvement of the petitioner would not be correct and, therefore, the present petitioner Ganesh Dubey may not be prosecuted in this case.
Learned A.G.A. by opposing the submissions of learned counsel for the petitioner submitted that misdescription and omission in FIR regarding the name of principle accused or number of shots fired is not sufficient to discard the entire prosecution case as held by the Apex Court in the case of Surjit Singh alias Gurmit Singh Vs. State of Punjab; 1993 Supp (1) SCC 2008. He also relied upon the judgement in the case of Bharvad Bhikha Valu and others Vs. The State of Gujarat; 1971 SCC (Crl.) 500 and submitted that mere non mentioned of the name of accused in the first information report is not necessarily fatal if there is other evidence to prove the case against him. The evidence of extending threats by the petitioner is available on record. The other evidence of confessional statement of the accused persons including the confessional statement of the petitioner is also available by which the accused may be linked in the commission of crime. The statement of co-accused is also relevant and admissible under Section of 30 of the Evidence Act. From the perusal of the contents contained in paragraph 6 of the counter affidavit filed on behalf of State, it reveals that Ganesh Dubey was arrayed as accused with the help of Section 120-B of IPC on the basis of evidence collected during investigation. At this stage, minute scrutiny of the evidence is not expected from this Court as held by the Apex Court in the case of State of M.P. Vs. Surendra Kori; (2012) 10 SCC 155. In the case of criminal conspiracy, the special provision contained in Section 10 of the Evidence Act is required to be considered, which is slightly different from the general rule of appreciation and acceptance of Evidence. Section 10 of Evidence Act provides that the evidence of conversation of two or more persons heard by any one can be relevant and would be admissible evidence for establishing the charge of criminal conspiracy.
Considering the aforesaid contents contained in the counter affidavit, this Court vide order dated 01.08.2013 directed to produce the entire case diary and in pursuance thereof, the case diary has been filed along with affidavit by Sri Akhilesh , Circle Officer, Aliganj, Lucknow.
It is well settled that summoning of any person as accused to face the trial is a serious matter and should not be passed by the magistrate in a routine manner. The Magistrate should apply his mind and should not act mechanically while passing order for summoning the accused as held in Maqsood Alam Vs. State of Gujrat, (2008) 5 SCC 668. It is also well settled that power under section 482 Cr.P.C. should be exercised by the High court with great care and should be exercised sparingly to prevent the abuse of process of any court or to secure the ends of justice. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by the Apex Court in several decisions. Few of them are mentioned below:
"Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana v. Bhajanlal [(1992) Supp 1 SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259], Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168], M. Krishnan v. Vijay Kumar [(2001) 8 SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]."
The entire record of this case is not before this Court and only the photostat copy of case diary has been placed on record of this Court. The question of sufficiency of evidence against the accused to proceed is a question of fact which could only be effectively ascertained by the trial Court on the basis of material available on record as observed by the Apex Court in the case of Surendra Kori (supra). No value could be attached to the affidavit of informant Monu Kannojia given before this court because he is not an eye witness and what injured Pawan stated before the I.O. could not be confronted by him .
Therefore, the ends of justice would meet if this Court permits the petitioner to raise these objections by moving appropriate application before the trial court at appropriate stage of the trial.
Hence this petitions is finally disposed of with direction to the trial Court that If any such application is moved by the petitioner within 3 weeks from the date of communication of this order, the trial court after considering the material available on record dispose of the same in accordance with law before further proceeding with the case against the petitioner after giving opportunity of being heard to the prosecution as well as the present petitioner expeditiously and preferably within 3 months from the date of communication of this order after appearance of the petitioner in trial court.
It is also provided that if the petitioner Ganesh Dubey surrendered before the courts below within three weeks from today and moves application for bail, the same shall be considered and disposed of expeditiously by the courts' below in view of the law laid down by the Apex Court in the case of Lal Kamlendra Pratap Singh Versus State of U.P.: 2009(4) S.C.C. 437. For three weeks or till the date of surrender , which ever is earlier, no coercive steps shall be taken against the petitioner.
The interim order stand discharged.
With the aforesaid observations/directions, this petition is disposed of finally.
Dated: 13.11.2014 akverma