Court No. - 49
Case :- APPLICATION U/S 482 No. - 45420 of 2019 Applicant :- Manikchandra And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ambuj Pandey,Avanish Kumar Srivastava,Shailendra Kumar Singh Counsel for Opposite Party :- G.A.,Manoj Kumar Singh
Hon'ble Anil Kumar Ojha,J.
Heard learned counsel for the applicants, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the record.
This Application U/s 482 Cr.P.C. has been filed to quash the entire proceeding of Misc. Case No. 673 of 2017 bearing final report no. 1 of 2017 in Case Crime No. 442 of 2017, under Section 147, 302 & 201 I.P.C. (State of U.P. v. Manikchandra & others), P.S. Shivpur, District Varanasi pending in the court Chief Judicial Magistrate, Varanasi as well as cognizance /summoning order dated 21.10.2019.
Tersely put, the facts are that the F.I.R. was lodged against Hira Lal, Vimla Devi, Dev Chand, Manik Chandra and Deep Chandra in Crime No. 0442 of 2017 at P.S. Shivpur, District Varanasi, under Section 147, 302 & 201 I.P.C. Matter was investigated and thereafter investigating officer found no evidence against the named accused persons and submitted final report.
Protest petition was filed by complainant Raj Kumari Devi, after hearing her, learned C.J.M. Varanasi on 21.10.2019 rejected the final report and summoned the applicants under Section 147, 302 & 201 I.P.C. invoking the provisions of Section 190(1)(b) Cr.P.C.
Submission of the learned counsel for the applicants is that there is no evidence against the applicants. Magistrate has illegally summoned the applicants. He drew attention towards the statement of Raj Kumari, annexed at page 35 to 37 of the paper book wherein she has not supported the prosecution case and she has specifically stated that her father was living with her uncle Hira Lal. However, in her additional statement, she stated that she believes that applicants have committed murder of her father to grab the movable and immovable property and crores of rupees of compensation. Other witnesses Malti Devi and Kanti Devi who are real sisters of the informant (Raj Kumari Devi) have also corroborated the same facts.
Per contra, learned counsel for opposite party no. 2 vehemently defended the order passed by learned C.J.M., Varanasi on 21.10.2019 and contended that the learned C.J.M. has summoned the applicants on three counts: 1. Her uncle did not inform the daughters of deceased Ram Lakhan Vishwakarma about the death of deceased; 2. There is contradiction of age of deceased in the statement of Hira Lal and Railway Ticket Reservation Confirmation Chart; and 3. There is will in favour of wife of accused Hira Lal allegedly executed by deceased Ram Lakhan Vishwakarma.
Considering the statement of learned counsel for the parties, learned Magistrate summoned the applicant treating the conclusion of I.O. against the facts available in case diary. Although three sisters Raj Kumari Devi, Malti Devi and Kanti Devi have specifically stated that they believe that applicants have committed murder of their father.
Suspicion howsoever, grave cannot take the place of proof. Moreover, except motive to grab the movable and immovable property and money got in compensation of deceased Ram Lakhan Vishwakarma, nothing is on record and only on the basis of motive, it would be inappropriate to summon the applicants in a grave offence like murder.
In view of the above, I am of the considered opinion that order passed by learned C.J.M., Varanasi is abuse of process of law and the same deserves to be set aside.
During course of argument, learned counsel for the opposite party no. 2 submitted that he has filed certain documents along with his counter affidavit which establishes the guilt of the applicant. It is a murder case which falls in the category of heinous offence, hence, I deem it appropriate that opportunity may be provided to opposite party no. 2 to adduce evidence before the learned Magistrate.
In view of the above, impugned summoning order dated 21.10.2019 is set aside.
Learned C.J.M. Varanasi is directed to pass order afresh after affording opportunity of hearing to the opposite party no. 2 in the light of observations made above.
Accordingly, this application is allowed.
Order Date :- 6.10.2021/VPS