Court No. - 67
Case :- APPLICATION U/S 482 No. - 7334 of 2019 Applicant :- Sattideen And 3 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Krishna Dutt Awasthi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Supplementary affidavit filed by the applicants and Vakalatnama filed by Sushil Kumar Dubey on behalf of private opposite party today, are taken on record.
Heard Sri Krishna Dutt Awasthi, learned counsel for the applicants, learned counsel for private opposite party, learned AGA and perused the record.
By means of the instant application under section 482 Cr.P.C., the applicants are assailing summoning order dated 05.01.2019 passed by the Additional Chief Judicial Magistrate/FTC, Auraiya in Case No. 39 of 2019 (Ragini v. Sattideen and others) arising out of Case Crime No. 317 of 2018, under sections 452, 354, 323, 504, 506 and 307 IPC, P.s. Erva Katra, District Auraiya as well as for quashing the entire criminal proceedings in currency therein.
Contention raised by the learned counsel for the applicants is that Smt. Ragini Yadav, opposite party no. 2 has lodged FIR on 01.11.2018 for the alleged incident occurred on 20.09.2016 under the aforesaid sections against all the four accused applicants, who are their own family members. This FIR came into existence through application filed under section 156(3) Cr.P.C. It is further contended that both the contesting parties are inimical in a trial on account of a civil dispute, which is still pending bearing Civil Misc. Writ Petition (B) No. 43395 of 2014 (Sarnam Singh and another v. DDC and five others) before a coordinate Bench of this Court. It is worth to mention here that in the aforesaid petition, the petitioner Sarnam Singh is that father-in-law of opposite party no. 2. In order to dilute the aforesaid petition, the instant criminal proceedings application under section 482 Cr.P.C., has been filed by the applicants to combat the aforesaid civil proceedings. The police after conducting the investigation and recording the statements of the witnesses as well of the opposite party no. 2 submitted final report wherein the opposite party no. 2 has filed protest petition, which was registered as complaint case. The trial court responding the complaint in exercise of powers envisaged under section 319 Cr.P.C., summoned the all the applicants to face the trial in the aforesaid case vide order impugned.
Learned counsel for the applicants further contended that since cognizance has been taken under the provisions of section 164 Cr.P.C., wherein there is mandatory requirement of law that statement under section 164 (5A)(a) Cr.P.C., which was inserted by Act No. 13 of 2013 vide section 16 of the amending Act w.e.f. 04.02.2013. The Section 164 (5A)(a) Cr.P.C. is extracted herein below for ready reference:
"[(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) , the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed;
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.]"
It is fortified by the learned counsel for the applicants through his contention that without following the aforesaid mandatory provisions of section 164 (5A)(a) Cr.P.C., the order impugned has been passed, which can be deemed as miscarriage in the interest of natural justice and thus bad in law.
Combating the aforesaid contentions, Sri Sushil Kumar Dubey, learned counsel for private opposite party contended that considering to the aforesaid legal prepositions of law, there seems to be legal fallacy in the investigation, therefore, the learned trial court has rightly summoned the applicants to face the trial to adjudicate the matter to meet the ends of justice.
After hearing contentions of both the contesting parties, perusing the order impugned with utmost care, considering the provisions of law envisaged under 164 (5A)(a) Cr.P.C., and dwelling the facts and circumstances of the case, this Court draws the conclusion that the order impugned is liable to be set aside.
The summoning order dated 05.01.2019 passed by the Additional Chief Judicial Magistrate/FTC, Auraiya in Case No. 39 of 2019 (Ragini v. Sattideen and others) arising out of Case Crime No. 317 of 2018, under sections 452, 354, 323, 504, 506 and 307 IPC, P.s. Erva Katra, District Auraiya is hereby set aside.
The trial court is directed to record the statements of the victim, pursuant to the provisions of 164 (5A)(a) Cr.P.C., within a period a six weeks from the date of production of a certified copy of this order and only thereafter the Investigating Officer of the case would submit his fresh report under section 173 (2) Cr.P.C. within two weeks.
With the aforesaid directions, the application under section 482 Cr.P.C., is hereby disposed of.
Order Date :- 28.2.2019 shailesh