This writ petition has been filed with a prayer to quash the impugned summoning order dated 2.8.2005 (annexure 22 to the writ petition) passed by Chief Judicial Magistrate, Bhadohi in criminal misc. case no.4 of 2005 arising out of case crime no.671 of 2004, P.S. Gopiganj, District Sant Ravidas Nagar (Bhadohi) as well as order dated 11.11.2005 (annexure 24 to the writ petition) passed by Sessions Judge, Bhadohi at Gyanpur in criminal revision no. nil of 2005 (Prabhakar Shukla @ Disco Vs. State of U.P.).
The facts of the case are that respondent no.2 - Ram Surat Shukla lodged a F.I.R. against the petitioner under section 304 IPC at P.S. Gopiganj, District Sant Ravidas Nagar (Bhadohi) on 17.9.2004 at 00:10 a.m. stating therein that his son Girja Shanker Shukla had gone with the petitioner Prabhakar Shukla @ Disco on a motorcycle on 10.9.2004 (Friday) at 6:00 a.m. for Varanasi. On 11.9.2004 at about 11- 12 p.m., a telephonic information was received that Girja Shanker Shukla had been assaulted. The complainant accompanied by 4 - 5 others went to village Seekhapur, P.S. Gopiganj by a jeep and found his son there in an injured condition. The injured Girja Shanker Shukla was taken to Primary Health Centre, Gopiganj, from where, after first aid, he was referred to Varanasi. Girja Shanker Shukla was taken to Singh Medical & Research Centre, Maldhiya, Varanasi from where, on 12.9.2004 at 10:45 a.m., he was referred to B.H.U. Hospital, where Girja Shanker Shukla died on 14.9.2004 at about 5:00 p.m. On the basis of a written report, F.I.R. was registered under section 304 IPC. After investigation, final report was submitted by the police. A notice was issued to the complainant who filed protest petition against the final report, which was registered as criminal misc. case no.4 of 2005. After hearing the complainant, the Chief Judicial Magistrate, Bhadohi, by impugned order dated 2.8.2005, rejected the final report. He found sufficient material in the case diary against the petitioner and, therefore, summoned the petitioner to face trial under section 302 IPC. The petitioner preferred a criminal revision against the summoning order passed by the Magistrate, which was dismissed by Sessions Judge, Bhadohi at Gyanpur at the time of admission itself vide judgment and order dated 11.11.2005. Both the aforesaid orders are under challenge in this writ petition.
I have heard Sri Amit Kumar Srivastava, learned counsel for the petitioner, Sri P.N. Tripathi, learned counsel for the complainant as well as learned A.G.A. appearing on behalf of the State.
It is submitted by learned counsel for the petitioner that both the courts below failed to notice that there was no mention of any dying declaration made by the deceased in presence of complainant or the witnesses in the F.I.R. and this was an improvement made by the complainant subsequently. It was further submitted that it was not a case of murder, but a case of an accident. It was pointed out that the statements of some witnesses have been recorded by the investigating officer in the case diary showing that the deceased himself told some persons that he was hit by a jeep. It was further contended that there was no sufficient material in the case diary to summon the petitioner to face trial. Only on the basis of suspicion, the Magistrate took the cognizance relying on the affidavits filed by the complainant, which was not permissible in law. It was further contended that the trial court has not followed the decision of a Division Bench of this Court in the case of Pakhando & Others Versus State of U.P. & Another, 2001 (43) ACC 1096. The contention of learned counsel for the petitioner is that if the Magistrate had any doubt regarding the mode and manner of investigation, he could have directed further investigation and cognizance should not have been taken.
Per contra, learned A.G.A. as well as learned counsel for the complainant supported the impugned orders and submitted that there was strong circumstantial evidence against the petitioner. It was the petitioner, who right from the very beginning, remained with the deceased till last and he has not come forward with any explanation under what circumstances the deceased received injuries. It was further submitted that on 10.9.2004, the deceased left his house along with the petitioner at 6:00 a.m. and went to Varanasi. There is material in the case diary to show that the deceased remained with the petitioner throughout and on 11.9.2004 when they were coming back to the village, they went to Government Hospital, Gyanpur where one Pinki, daughter-in-law of Chamela Devi was taken to Hospital due to stomachache. Pinki was pregnant. After about two hours, she was taken to the hospital of Dr. Manju Singh and at about 10:00 p.m., the deceased went away for easing himself along with the petitioner. The contention is that all along, the petitioner was with the deceased and it was for the petitioner to explain the circumstances in which the deceased met his maker.
In Pakhando & Others Versus State of U.P. & Another (supra), a Division Bench of this Court has held as under :
"Where the Magistrate receives final report, the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-
(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190 (1) (b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued."
On receipt of a final report submitted by the police and filing of protest petition by the complainant, the Magistrate can summon the accused to face the trial if there is sufficient material in the case diary against the accused. In the instant case, admittedly the petitioner went with the deceased on 10.9.2004 at 6:00 a.m. to Varanasi on a motorcycle. As per the statements of witnesses, the deceased was seen with the petitioner till 10:00 p.m. on 11.9.2004. Soon thereafter, the deceased received injuries and lost consciousness.
Incised wounds and contusions were found on his head by the Medical Officer when the deceased was medically examined in the Primary Health Centre when he was alive. On autopsy, stitched wounds were found on outer part of right ear upper lobe, outer angle of right eyebrow, left side of head 'V' shaped, another stitched wound on left side of head, right eye contused and there were multiple scabbed abrasions on front of chest and abdomen below the sternal notch. Right side of frontal bone was fractured. Cause of death was head injuries.
A perusal of the summoning order reveals that the same has not been passed on the basis of affidavits but has been passed on the basis of statements of witnesses recorded in the case diary by the investigating officer.
There is no mention of the dying declaration in the F.I.R. Even if the circumstance of dying declaration is ignored, there is sufficient material on the case diary to indicate that the petitioner was all along with the deceased right from the morning of 10.9.2004 till almost the time of receipt of injuries by the deceased. There is no credible evidence to show that injuries were caused to the deceased by an accident. In these circumstances, there is strong suspicion against the petitioner that he caused injuries to the deceased resulting in his death. At the stage of summoning, the Magistrate has to come to the conclusion as to whether there are sufficient grounds for proceedings against the accused. The Magistrate does not have to record a finding that there is sufficient evidence to procure conviction of the accused rather the summoning order can be passed if there is sufficient material for trial. If there is sufficient material to indicate strong suspicion against him having committed a serious offence, a person can be summoned to face trial. From the material available in the case diary, I am satisfied that there is sufficient material on record to proceed against the petitioner for having committed murder of the deceased. I do not find any force in the contention of the learned counsel for the petitioner that the Magistrate ought to have directed reinvestigation of the case. No doubt, reinvestigation can be ordered by the Magistrate if he finds that investigation was done in a perfunctory manner. In the instant case, there are statements of witnesses, who have seen the deceased in the company of the petitioner soon before he was found in an injured condition. Medical evidence also indicates his unnatural death most probably due to homicide. In these circumstances, I do not find any good ground to quash the impugned summoning order as well as the order passed by learned Sessions Judge rejecting the revision.
The writ petition is devoid of force and is accordingly dismissed.
However, in the facts and circumstances of the case, it is directed that, if the petitioner surrenders before the court concerned within a period of three weeks from today and applies for bail, his prayer for bail be considered by the courts below expeditiously.
The interim order, granted earlier, stands vacated.
Dtd./- 21st January, 2011 ss-11761/2005