Court No. - 49
Case :- APPLICATION U/S 482 No. - 8621 of 1997 Applicant :- Smt. Hina And Another Opposite Party :- State of U.P.
Counsel for Applicant :- Rakesh Chandra Upadhyay,Dileep Kumar,G.S.Chaturvedi,Rajrshi Gupta,Swetashwa Agarwal Counsel for Opposite Party :- R.P. Singh,A.G.A.,Murlidhar
Hon'ble Saumitra Dayal Singh,J.
1. List revised. Heard Shri Dileep Kumar, Senior Advocate, and Shri Swetashwa Agarwal, learned counsel for the applicant and Shri Ashish Mani Tripathi, learned AGA for the State. None present for the informant.
2. Present application under section 482 Cr.P.C. seeks quashing of the order dated 23.9.1996 passed by the Chief Judicial Magistrate, Aligarh, taking cognizance and summoning the applicants under Section 302 I.P.C., in Case No. 22/12/89 (State Vs. Hina & Ors.), arising from Case Crime No. 442 of 1988. Also, the applicants seek quashing of the order dated 11.7.1997 passed by the Chief Judicial Magistrate, Aligarh, rejecting the review application filed by the applicants and the order dated 6.12.1997 passed by VIII Additional Sessions Judge, Aligarh, rejecting the revision filed by the applicants, arising from the orders dated 23.9.1996 and 11.7.1997. At the outset, it has been submitted, during pendency of the present proceedings, applicant no.2 - Wizarat Husain has died.
3. The case has a checkered history. The surviving applicant no.1 is the wife of the deceased Urfi. The First Information Report was lodged on 7.12.1988, by Siddique Husain (father of the deceased), against the applicants and five others. It was alleged, the deceased Urfi was burnt to death when he visited the residence of the applicants, at Aligarh, on 04.12.1988. Upon investigation, the police submitted a closure report. Against that, a protest petition was filed by the first informant. It came to be allowed by order dated 10.4.1991 and cognizance was taken. The applicants filed revision against that order. It was allowed, by order dated 27.7.1991 and the matter was remanded to the learned Magistrate. Against that order, the first informant filed a revision before this Court. It came to be allowed by order dated 21.12.1994. This Court set aside that order and remitted the matter to the learned Magistrate. In turn, the learned Magistrate directed re-investigation in the matter. On 12.3.1996, a second final report was submitted by the police to which, again, a protest petition was filed by the informant side.
4. Exercising his power under Section 190(1)(b) of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the learned Magistrate took cognizance of the offence and summoned the applicants, vide his order dated 23.9.1996. In view of the then existing statutory provisions, the applicants appear to have filed a review application before the learned Magistrate, which was rejected by order dated 11.7.1997. The further revision filed before the learned VIII Additional Sessions Judge, Aligarh, was also rejected by order dated 6.9.1997. Hence, this application.
5. Upon hearing the parties, initially, an interim order was granted on 23.12.1997 whereby the proceedings in Case No. 22/12/98 (State Vs. Hina & Ors.) pending in the court of Chief Judicial Magistrate, Aligarh, had been stayed. While that order is stated to have been vacated by operation of law, the proceedings are stated to be pending at that stage itself.
6. In short, it has been submitted by learned counsel for the applicants - during the two investigations conducted by the police, no material surfaced as may make out the ingredients of the offence under Section 302 I.P.C. Thus, it has been submitted, the material collected during investigation points in one direction - the deceased suffered an accidental occurrence. In that he suffered burn injuries upon petrol igniting as he lit his cigarette. The statements of the witnesses recorded during investigation and the dying declaration of Urfi, are all stated to be supporting that accidental occurrence. In any case no material taken either individually or in entirety, could lead the learned Magistrate to a satisfaction of ingredients of offence under Section 302 I.P.C. made out.
7. Thus, though it was open to learned Magistrate to disregard the conclusion recorded by the police while submitting the final report, it was not open to him to disregard the material that existed on the Case Diary and to record a different conclusion solely on assumptions and presumptions raised by him. Reliance has been placed on a three-judge bench decision of the Supreme Court in M/s India Carat Pvt. Ltd. vs. State of Karnataka & Anr., AIR 1989 SC 885.
8. On the other hand, learned AGA has referred to the statement of one Smt. Masraiyat, daughter of Muntani, to submit, the said witness had heard the deceased speak to applicant no.1 expressing his intention to commit suicide if she did not accompany him to Delhi. The occurrence took place soon thereafter inside the house of the present applicants. Also, he referred to statement of the first informant that the house was locked from inside and that the applicants did not try to save the deceased as he came to be engulfed in the blaze of fire. The learned Magistrate has rightly proceeded against the applicants. At the stage of trial, all pleas would remain open to the applicant and no prejudice may be caused to her.
9. Having heard learned counsel for the parties and having perused the record, first, it must be accepted that the learned Magistrate had discretion to proceed to take cognizance of the offence under Section 302 I.P.C. in exercise of his power under Section 190(1)(b) of the Code, contrary to the conclusion of investigation presented before him. However, that discretion could not be exercised unmindful of the status of the Case Diary. In fact, in absence of Complaint Case procedure being adopted, the learned Magistrate could reach his satisfaction as to existence of ingredients of section 302 I.P.C. and take cognizance of that offence, based solely on the Case Diary material, only.
10. It is a settled position in law, as pointed by learned counsel for the applicants, while the learned Magistrate may have rejected the conclusions recorded by the police authorities, but he could not disregard the Case Diary material brought by the police. To act on other statements and material, he would have to necessarily treat the case as a Complaint Case; record statements etc. and then proceed. That was clearly not done. Therefore, the learned Magistrate could only have interfered with the conclusions reached by the police authorities, on his own opinion arising on the self-same Case Diary material. While taking cognizance under Section 190(1)(b) of the Code it is not the learned Magistrates privilege to introduce any new fact, outside the Case Diary and it is also not open to him to draw any assumptions or presumptions as to the existence of such other fact.
11. Indisputably, the Case Diary reveals - during the investigation, a dying declaration of Urfi was recorded on 04.12.1988, a day prior to his death, on 05.12.1988. According to the Case Diary that statement was recorded at 4:40 p.m. on 04.12.1988 after due certification by the Chief Medical Officer, Jawaharlal Nehru Medical College Hospital, Aligarh Muslim University, Aligarh. The Investigating Officer also recorded the statement of Dr Farzana Khatoon Beg. The said doctor had supported the factum of the dying declaration recorded in accordance with law and she also certified the medical condition of the deceased, at the time of the dying declaration being recorded. In his dying declaration, the deceased was specifically asked as to when, where and how, the burn injuries were caused. To that, the deceased specifically replied - the fire was caused by petrol that he was carrying in his coat pocket, to dry clean his clothes. The fire was caused as the petrol (about half litre) that he was carrying in a bottle caught fire as he tried to light a cigarette. Again, to a direct question, as to who all were present with him when the fire was caused, the dying declaration records - none was present with the deceased when the fire was caused. Last, to a specific question, if the occurrence was caused due to any pre-existing animosity, the deceased replied in the negative.
12. The other witnesses (fifteen) examined during investigation being Arastu, Rahat Ali Khan, Masaraiyat, Farah, Shahnaz, Zarina, Gulam Mujib, Ramzani, Maboob Hasan, Mohd. Arshad, Ashraf Suleiman, Shital Chandra Shukla, Islamuddin and Maqsood Aga, all appended to the present application have been perused. They only appear to narrate that at the time of occurrence, the house of the applicants was not locked from inside. It was open. Upon Urfi raising a cry for help, as he came out in a blaze of fire, all around him, including the applicants tried to help douse the fire with earth, water and a blanket. According to many witnesses, Urfi was uttering words to regret having done what he had and asked to be taken to the hospital to save his life. No statement or part of any statement appears to exist in the Case Diary as may support any allegation of the deceased Urfi being done to death by the applicants.
13. The witnesses examined by the police are numerous. All appear to be immediate neighbours of the applicants and not their family members. All of them had reached the spot after Urfi raised the cry for help. Though they brought out the fact of the deceased having suffered burn injuries while he was at the residence of the present applicants on 04.12.1988 for about 20 minutes, they denied the FIR allegations of the applicants' house being locked from inside. They specifically stated, the applicants were also trying to douse the fire that had engulfed Urfi and that they were also calling out for help, at that time.
14. Specifically, the house help - Smt Masraiyat stated, the deceased arrived at the applicants' residence, unannounced on 04.12.1988, to meet his estranged wife (Applicant no.1) and their one-year-old daughter. She claimed to have over-heard the applicant no. 1 and the deceased, as they spoke prior to the occurrence. In that, the deceased asked the Applicant no.1 to accompany him to Delhi. He further threatened to immolate himself if she refused to accompany him to Delhi. Even then, she did not state that the applicants had caused the occurrence. In fact, that witness, and all other witnesses examined during the investigation only stated that they gained awareness of the incident only upon hearing cries for help as Urfi came to be engulfed in a blaze of fire caused to the clothes worn by him. They also stated, the applicants tried to douse the fire by throwing water. Other witnesses who were neighbours of the applicants' made statements to similar effect.
15. No other material or evidence has been shown to exist on the Case Diary as may point to the presence of ingredients of offence under Section 302 IPC. No statement came to be recorded by the learned Magistrate under section 200/202 Cr.P.C. pursuant to the protest petition being filed.
16. Examined in that light, the impugned order dated 23.09.1996 does take note of the material existing on the Case Diary. Yet, nothing has been shown to exist on that Case Diary as may create a doubt as to the fairness of the investigation or correctness or completeness of the statements recorded therein. Thus, all the statements recorded during the investigation including the Dying Declaration are part of the Case Diary. The learned A.G.A. could not show any Case Diary material as may be relied, to allege commission of heinous offence under section 302 I.P.C.
17. What may be considered adverse to the applicants are the observations of the learned Magistrate. Thus, in face of the Dying Declaration and the statements on record discussed above, the learned Magistrate has presumptuously disregarded the same. He has assumed, purely on imaginative basis and not based on any material on record - had the applicants attempted to douse the fire on the clothing of the deceased, they would have suffered burn injuries on their hands. More crucially, the Dying Declaration, has been disbelieved on an unfounded assumption as to fact, that the said Dying Declaration was recorded under the undue influence of Applicant no.2 (since deceased) who was a professor (retired), at the Aligarh Muslim University.
18. Such presumptions and assumptions were impermissible to be drawn, de hors any material existing on the Case Diary. On the contrary, in the present case, the Investigating Officer had recorded the statement of Dr Farzana Khatoon Beg. She clearly supported the Dying Declaration of Urfi and confirmed it was recorded in the manner prescribed by law.
19. The learned Magistrate has also referred to the fact that the police did not recover the container that may have been used to store petrol. That discrepancy also could not be relied on to take cognizance of offence alleged under section 302 I.P.C.
20. The further observations made that the applicants had locked the house from inside and had not helped save Urfi from the fire, are contrary to all statements recorded during the investigation. Here it may be further noted, almost all witnesses stated, upon being severely hurt, Urfi muttered words to the effect - expressing regret at what he had done and was asking to be taken to the hospital to save his life. The assumptions and presumptions raised by the learned Magistrate are unfounded on material on record.
21. Though, it was in the complete discretion of the learned Magistrate to rely on the material existing on the Case Diary and reach a conclusion contrary to the one reached by the police and thereafter take cognizance of the offence, at the same time, the learned Magistrate could not supplant or supplement the material with his own presumptions or assumptions, as to fact, unfounded on Case Diary material, in absence of any statement being received by the Magistrate under section 200/202 Cr.P.C.
22. There was absolutely no material on the Case Diary as may have allowed the learned Magistrate a liberty to reach a conclusion that the Dying Declaration of Urfi was prepared under undue influence of the Applicant no.2. Similarly, the fact that the applicants had not suffered burn injuries on their hands could not be relied as a rule of law to reach the conclusion that therefore they did not make any attempt to save the life of the deceased. Even so, it could never lead to a conclusion - therefore the applicants committed the murder of Urfi.
23. What the learned Magistrate was obligated to look at was the material that existed on the record. Other than the FIR allegation made by the father of the deceased Siddique Husain and his wife and younger son who were admittedly not present at the time and place of occurrence, there was no material to proceed against the applicants. In face of undisputed fact that he was not present at the time and place of occurrence, the statement of Siddique Husain also did not bring out any new fact or evidence as may have led to the satisfaction of the learned Magistrate to take cognizance under Section 190(1)(a) of the Code - of offence committed under section 302 I.P.C.
24. The entire Case Diary material points in one direction - that the deceased Urfi was travelling from Lucknow to Aligarh on 04.08.1988, by train. He got down at Aligarh to visit his estranged wife and child. He reached their residence and spent about twenty (20) minutes there. During that period, he suffered burn injuries caused upon petrol getting ignited while he was attempting to light a cigarette, as was stated by him in his Dying Declaration recorded on 04.08.1988. He was rushed to the hospital, amongst others by Applicant no. 2. He died on 05.08.1988, during treatment at the hospital.
25. In face of the above facts found recorded in the Case Diary and in absence of any other material to suggest that the applicants had committed the heinous offence of murder under Section 302 IPC, the satisfaction drawn by the learned Magistrate is found to be based purely on presumptions and conjectures, unfounded on any material on record. The learned (Revision) Court below has also similarly erred in rejecting the revision.
26. Assuming that the exact cause and manner of death of Urfi was not duly explained during the police investigation, it would not be decisive or sufficient or even relevant to reach a conclusion that the applicants must therefore be tried for the offence of murder, under Section 302 IPC. The scope of investigation, inquiry and trial would remain ever different and distinct. Besides the stage of investigation, inquiry and cognizance being different, different pre-conditions must be satisfied before such exercise may be undertaken at each such stage. At present, though the stage of inquiry may have existed, the stage for cognizance had not arisen as the Case Diary material did not bring out any material to try the applicants for the offence of murder of Urfi.
27. Today, thirty-three (33) years have passed since the incident. Matter was twice investigated, and successive closure reports submitted. Neither inquiry was conducted by the learned Magistrate nor the Complaint Case procedure was resorted by him, at the relevant time to ascertain further facts. In such peculiar facts, no justification exists to set-aside the impugned orders and to remit the matter to the learned Magistrate as no fresh/further evidence may now be expected to surface after more than three decades. Therefore, instead of remitting the matter to the learned Magistrate, which is the standard response that must be offered in such cases, in the peculiar facts of the present case, the proceedings be dropped as no useful purpose may be served in adopting that course, thirty-three (33) years after the occurrence.
28. Accordingly, the orders dated 23.9.1996 and 11.7.1997 passed by the Chief Judicial Magistrate, Aligarh, and the order dated 6.12.1997 passed by VIII Additional Sessions Judge, Aligarh, are quashed.
29. Present application is allowed.
Order Date :- 29.10.2021 Prakhar