Reserved on: 11.4.2018
Delivered on: 31.5.2018
Court No. - 44
Case :- APPLICATION U/S 482 No. - 11439 of 2018 Applicant :- Vinod Gupta And 5 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kameshwar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Kameshwar Singh, learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 24.2.2017 passed by the Chief Judicial Magistrate, Ballia in Complaint Case No. 2159 of 2017 (Ramji Mishra Vs. Vinod Gupta and others) under Sections 147, 302, 201 IPC, P.S. Bansdeeh Road, District Ballia, the order dated 6.3.2018, whereby non bailable warrants have been issued against the applicants as well as entire proceedings of the above mentioned complaint case.
From the record, it transpires that an incident is alleged to have occurred on 17.3.2017 in which Mithilesh Mishra the son of opposite party no.2 is alleged to have died. Thereafter on the information submitted by one Brijesh Kumar Mishra the panchayatnama of the deceased was conducted on 17.3.2017 . In the opinion of the panch witnesses, it could not be said with certainty whether the death of the deceased Mithilesh Mishra was homicidal, suicidal or accidental. After the inquest/panchayatnama of the body of the deceased Mithilesh Mishra had been performed, the body of the deceased was sent for postmortem on 18.3.2017. The doctor who conducted the postmortem of the deceased found the following injuries:-
"1. Multiple fracture of frontal, pariental, temporal and occipital bones of both balves of skull present with lacertation of 5cm x 4cm over temporal bone (Lt), 1.5cm x 2cm over Lt frontal bone, 3 cm x 2cm over Rt frontal bone and 1cm x 3cm over Lt occipital bone is present.
2. 3 cm x 1.5 cm abrasion present horizontally below left ear.
3. 0.5 cm x 0.5 cm abrasion present below Rt nostril and above Rt lateral upper lip.
4. Contusion swelling 8 cm x 7 cm is present on Lt elbow joint invalving both sides of joint with dislocation of Lt humerous and Lt ulna and left redius present.
5. Multiple abrasion grealy material present over abdomen and chest lorgest measuring 5cm over epigontic region
6. Ribs (4,5,6,7,8 of Rt and 6,7,8,9) of Lt sides of fractured and crushed at multiple.
7. Multiple abrasion with lorgent measuring 4cm present over antero lat present of Rt arm.
8. Multiple fracture of Lt femur and proximal Lt tibia and Lt fibula present with dislocation (ant) and fracture of Lt patella bone
9. Two horizontal abrasion of 5cm and 4 cm present over body of Rt scapula bone at back."
In the opinion of the doctor, the cause of death was haemorrhage and shock due to ante-mortem injuries.
After the aforesaid formalities had been completed, and five days after the alleged incident an F.I.R. dated 22.3.2017 was lodged by the opposite party no.2 Ramji Mishra father of the deceased Mithilesh Mishra at police station Bansdeeh Road, District Ballia, which was registered as Case Crime No. 428 of 2017 under Sections 147, 302, 201 IPC, P.S. Bansdeeh Road, District Ballia.
Pursuant to the aforesaid F.I.R., the Investigating Officer recorded the statements of the various witnesses from 28.3.2017 to 17.4.2017. Ultimately, the Investigating Officer submitted a final report dated 24.7.2017. However, what has happened subsequent to the submission of the aforesaid final report, has not been detailed in the affidavit filed in support of the present criminal misc. application.
Subsequently, the opposite party No.2 filed a complaint on 9.5.2017, regarding the alleged killing of his son Mithilesh Mishra which was registered as Complaint Case No. 2159 of 2017 (Ramji Mishra Vs. Vinod Gupta and others). Thereafter the statement of the complainant opposite party no.2 Ramji Mishra was recorded in terms of Section 200 Cr.P.C. and of six witnesses from 23.6.2017 to 29.6.2017 in terms of Section 202 Cr.P.C.
On the basis of the aforesaid, the Chief Judicial Magistrate, Ballia summoned the present applicants under Sections 147, 302 and 201 IPC in the above mentioned complaint case.
As the applicants did not appear before the court below on the date fixed vide summoning order dated 24.10.2017, the Chief Judicial Magistrate, Ballia passed the order dated 6.3.2018, whereby non bailable warrants were issued against the applicants. Feeling aggrieved by the summoning order dated 24.10.2017, and the order dated 6.3.2018 whereby non bailable warrants have been issued against the applicants, the applicants have now approached this court by means of the present application under Section 482 Cr.P.C.
Mr. Kameshwar Singh, learned counsel for the applicants submitted that the impugned summoning order dated 24.10.2017 passed by the court below is manifestly illegal. Elaborating his submissions, he submits that along with the complaint filed by opposite party no.2, a list of witnesses containing the names of nine witnesses was supplied. However, out of the aforesaid nine witnesses only six witnesses were examined and on that basis, the court below has passed the impugned summoning order. Referring to the provisions of section 202 (2) Cr.P.C., he submits that procedure so adopted by Chief Judicial Magistrate, Ballia is manifestly illegal and consequently, the impugned summoning order dated 24.10.2017 is also illegal. Once the case was triable by the court of sessions, the Chief Judical Magistrate could not have summoned the accused applicants without recording the statement of the witnesses whose names were mentioned in the list of witnesses, supplied by the complainant-opposite party no.2.
He, further, submits that while passing the summoning order dated 24.10.2017, the Magistrate has not considered the fact that an F.I.R. dated 22.3.2017, had already been lodged in respect of the same criminality by the opposite party no.2 Ramji Mishra who is the complainant of the present complaint case. He, therefore, submits that failure on the part of the Chief Judicial Magistrate, Ballia in not considering the aforesaid fact, has vitiated the impugned summoning order dated 24.10.2017.
Elaborating his challenge to the impugned summoning order dated 24.10.2017, learned counsel for the applicants submits that the death of the deceased Mithilesh Mishra had occurred due to an accident as he fell before a moving train which is the place of occurrence. The place of occurrence, as well as the time of occurrence stands corroborated from the information dated 10.3.2018 given under the right to information act. A perusal of the said report clearly goes to show that three trains had passed the place of occurrence. Therefore, on the aforesaid factual premise, it is urged that by no stretch of imagination, the applicants can be implicated for causing the death of the deceased.
It is then urged that subsequent to the F.I.R. dated 22.3.2017, the police upon investigation of the aforesaid F.I.R. in terms of Chapter-XII Cr.P.C. has submitted the final report.
Therefore, in the light of the aforesaid facts, it is submitted that the complaint dated 9.5.2017 filed by the opposite party no. 2 Ramji Mishra is clearly not maintainable. Lastly, it is urged that subsequent to the lodging of the F.I.R. dated 22.3.2017, the statement of the eye witnesses was recorded in terms of the Section 161 Cr.P.C. and including that of the first informant Ramji Mishra. On the aforesaid factual premise, it is urged that the impugned summoning order is manifestly illegal and therefore, liable to be quashed by this court.
Learned A.G.A. has vehemently opposed the submissions made by the learned counsel for the applicants. According to the learned A.G.A., there does not exists any such illegality in the summoning order, on the basis of which the present application is liable to be allowed. He, further, submits that all the submissions urged by the counsel for the applicants require appreciation of evidence which certainly, cannot be looked into at this stage. He, further, submits that the evidence relied upon by the counsel for the applicants does not fall in the category of unimpeachable evidence and is therefore, not liable to be looked into or considered by this court in exercise of its jurisdiction under Section 482 Cr.P.C. The material collected during the course of investigation of Case Crime No. 428 of 2017, does not pertain to this very case and by simply placing reliance upon such material, the summoning order cannot be quashed.
Having considered the rival submissions urged on behalf of the learned counsel for the parties, the court finds that the issue regarding non compliance of Section 202 (2) Cr.P.C. is no longer res-ingegra. The Apex Court in the case of Rosy Vs. State of Kerala, reported in AIR 2000 SC 637 has held as follows in paragraphs 12, 13 and 14:-
"12. I may turn back to Chapter XV of the Code which contains the provisions to be invoked during the interregnum between filing of the complaint and issuance of process to the accused. Section 202 deals with postponement of process. The first sub-section says that any magistrate, on receipt of a complaint of offence, "may if he thinks fit postpone the issue of process against the accused", for resorting to any of the two courses i.e. either inquire into the case himself or direct an investigation to be made. But if the offence is triable by a Court of Session the magistrate cannot make a direction for investigation. So the magistrate taking cognizance of the offence upon a complaint, when such offence is not triable by the Sessions Court, can adopt either of the three courses:
(1) straightway-issue the process or (ii) he can postpone the issue of process for holding an inquiry or (iii) he can direct an investigation to be made. If the offence is triable by a Court of Session, it is impermissible for the magistrate to direct an investigation. To see whether in such cases he can straightway issue process to the accused without holding the inquiry, a careful interpretation of sub-section (2) of Section 202 of the Code is called for. That sub-section is hence extracted below :
"(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath."
13. It may appear, prima facie, that the question of examining all wit- nesses would arise only when the magistrate opts to hold an inquiry, otherwise not.
14. The crucial issue therefore is, when the offence, sought to be taken cognizance of by the magistrate, is exclusively triable by the Court of Session, is it incumbent on the magistrate to conduct an inquiry as enjoined in the proviso to Section 202(2) of the Code or can he dispense with such inquiry. The answer would not have been difficult if we go by the placement of the said proviso alone, as it can then be said that inquiry is not a must. If the said proviso was placed in Section 200 of the Code even a doubt that the legislative idea is to have all witnesses examined by the magistrate when the offence complained of is triable exclusively by the Court of Session would have been displaced. Nonetheless the placement of the proviso is not the only criteria in discerning the legislative intent. Indications can be gathered from other connected provisions for taking a contrary view."
In view of the above, the submission urged by the learned counsel for the applicants that the impugned order is illegal for not being in conformity with the provisions of Section 202 (2) Cr.P.C. is wholly misconceived.
So far as the challenge to the impugned summoning order on the basis of the evidence collected during the course of investigation, pursuant to the F.I.R. dated 22.3.2017 is concerned, the same is also not liable to be accepted. Section 162 Cr.P.C. clearly prohibits the use of such statement except for contradicting the person who gave the statement in terms of section 145 of the Indian Evidence Act. Section 162 Cr.P.C. is reproduced herein under:-
"162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act.
Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
A division Bench of this court in the case of Km. Rinki Vs. State of U.P. and others, reported in 2008 (8) ADJ 402, has held that acquittal of a co-accused in separate trial cannot be made the basis for quashing the proceedings against another co- accused. The case in hand is on a poor footing than that of Km. Rinki (Supra). In the present case, the accused applicant are seeking quashing of the impugned summoning order on the basis of the statement recorded by the Investigaing Officer in respect of an inquiry undertaken pursuant Case Crime No. 428 of 2017, under Section 147, 302, 201 IPC, P.S Bas deeh Road, District Ballia, which is otherwise not admissible in terms of Section 162 Cr.P.C.
Rest of the submissions urged by the learned counsel for the applicants are based upon appreciation of evidence which cannot be looked into at this stage as the evidence relied upon by the learned counsel for the applicant does not fall in the category of unimpeachable evidence. The said material cannot be relied upon at this stage by this court nor could the same has been relied upon by the court below as it does not form part of the evidence of the complaint case, giving rise to the present criminal misc. application. It may be noted that the evidence on the record gets crystallized only after the same has been admitted in terms of Rule 27 of the General Rules Criminal and has been marked as exhibit. This being the position, none of the grounds urged by the learned counsel for the applicants singularly or cumulatively have the effect of dislodging the summoning order dated 23.10.2017.
In view of what has been stated above, the present application fails and is hereby, dismissed.
Order Date :- 31.5.2018 Arshad