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SHREEPAL & OTHERS versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Shreepal & Others v. State Of U.P. & Another - CRIMINAL REVISION No. 5295 of 2005 [2006] RD-AH 9739 (17 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Revision No. 5295  of 2005

Shreepal and others Vs.  State of  U.P. and others.

Hon'ble R.K.Rastogi,J

This is a revision against the  order  dated  7.11.05 passed by the     Judicial  Magistrate -II, Jaunpur  in  Complaint Case No. 1065 of 2005, Indrapal Vs.  Shreepal and others , Police Station  Sikrara District  Jaunpur under sections 323,324,394,504 and 506 I.P.C

The facts relevant  for disposal of  this  writ petition are that  on 27.4.05 the  complainant opposite party no.2  moved an application  under section  156(3) Cr.P.C.  against the  revisionists  with these allegations  that  he  was  employed in the Railway Protection  Force  and after  retirement he came to  his village Samaspur , P.S. Sikrara District Jaunpur  to reside  at his  ancestral house . His brother Sripal  and his ( Sri Pal's )  two sons namely  Sri Maya Shankar and  Uma  Shankar  used to torture  him.  On 23.4.05 at about 4 P.M. a  quarrel took place  between  the ladies of  both the houses on account of  some dispute between  their children  and at that time  the  accused threatened  to see  him . On  24.4.05 at  about 6.30  P.M.  the complainant  Indrapal , after providing grass  to his  buffalo, was removing   it from  the  Nand. At that time  Sripal  and  his    son Uma Shankar  having Lathis in their hands, reached there  and  threatened  to kill him  and started  beating him with Lathis . They also  snatched Rs.1000/- from him  which he had  kept  in the  upper  pocket  of his  shirt . The complainant  shouted  for help.Then the witnesses  Ajai Kumar, Jagdish Prasad, Amarnath and  Chulbul  reached  there and saw the incident. The accused threatened him that if  he  lodges any report  against  them   at the police station , he would be killed . The complainant  could not  go any where  in   the night  due to  fear of the accused . On the next date, he went to the  hospital  and  got his injuries  examined,  and  then the information of the incident was  given to the S.P., Jaunpur  by  registered post  but no  action was  taken . It was, therefore,  prayed that  the  S.O. Sikrara may be directed  to register the case  against the accused  and  investigate   the same.

Learned Magistrate, after  hearing  the complainant ,  rejected  the above application  vide  order dated  11.5.05  in which  he  observed  that both the parties  belong  to one family  and it was alleged that  the accused  had   robbed Rs.1000/- from the complainant  which  he had  kept in his pocket . The  Magistrate  further observed that this  allegation of  robbery appears to have been  made with a view  to  make the  case cognizable by the   police, otherwise there was no justification  for  keeping  Rs. 1000/-  in the pocket  of shirt  while providing  fodder  to  buffalo     in the evening. It was also  observed that  the complainant may, if he so desires,  file  a complaint case   against  the accused persons. With these observations the  application  was   rejected.  Aggrieved  with  the above  order  the  accused revisionist  filed  criminal  revision  No. 439/05 before  the  Sessions  Judge, Jaunpur. This  revision  was  heard and  decided  by Sri R.P.Tripathi  learned Sessions Judge, Jaunpur  vide   his judgment and order dated 11.8.2005. He agreeing with  the view of the  learned Magistrate   expressed his opinion  that the allegation of robbery of Rs.1000/-  did not appear to be  true. He found no illegality in the order of  the learned Magistrate . He , therefore,  dismissed the revision.

Thereafter the complainant filed    complaint in the court of   Judicial Magistrate II , Jaunpur  under sections  323,324,394, 504 and 506 I.P.C.  with the similar  allegations. It was also  stated in the complaint that  the accused no. 2  Maya Shankar  was armed  with a  Ganasi  at the time  of incident  and he had used  that a Ganasi  in  the incident. The learned Magistrate  , after recording  the statement of the complainant under section 200 Cr.P.C.  and  of his  witnesses 202 Cr.P.C., was of the view that a prima facie  case under sections 323, 324, 394, 504 and 506 I.P.C.  was made out  against the  accused  . He , therefore,  summoned   them  vide his order dated 7.11.05. Aggrieved with  that order  the accused  filed this revision.

I have h eared the learned counsel for the revisionist as well as the learned A.G.A.  for the State  and the learned  counsel for the opposite party no.2.

It was submitted   by the learned counsel for the revisionist  that  actually  no case was  made out  against the accused persons and the learned  Magistrate   erred   while  summoning the  accused  persons . He further submitted that  the allegation of  robbery was not  believed  by the courts below  while  hearing the  application of the complainant  under section 156(3) Cr.P.C.  and so there was no  justification for  summoning  the accused  under section 394 I.P.C.  It was further submitted  that  there   was no  allegation in the application under section 156(3) Cr.P.C.   that  any of the accused  was  armed with Gandasi  and the  only allegation against the accused  in that application  was   that  they were armed with  Lathis,  and  so the allegation that  the accused  Maya Shankar  was armed with  Gandasi is an  after thought  in the  complaint. He further  pointed out  that  in  the injury report  of the complainant,  the Doctor  has expressed  his opinion  that both the injuries of Indrapal   were caused  by  some pointed  object . He  submitted that  neither  Lathi nor  Gandasi  is a pointed object  and so it was not  clear  as to how  Indrapal  had received  these injuries  from a   pointed object  upon his body,  and the learned Magistrate  did not consider this aspect of the  case  that   the injury  report was not  corroborating  the prosecution case,  and so he had erred in  summoning the  accused persons.

On the  other  hand the learned counsel for the  opposite party no. 2  submitted that a   prima facie    case was made out  against the accused  persons  and the learned Magistrate committed  no   legal error  by summoning  the accused persons  and the evidence  is not  to be  examined  on merits  at the stage of summoning the accused persons. It is true that  at the stage of  summoning the accused , the evidence produced  from the  complainant's side  is not to be assessed  on merits  and the  criteria  for summoning   the accused  is whether   unrebutted allegations  made in the complaint and  in the statements of the complainant  and  his witnesses  could   result in   conviction of the accused . If the reply is  in affirmative  then the accused   is to be  summoned and  if  it is in  negative   then  the accused  is not  to be  summoned  and the complaint is  to be dismissed. It is to be seen that  in the present case  the  Magistrate as well as  the  Sessions Judge  both  had expressed  an opinion on the application under  section 156(3) Cr. P. C.  that the allegation of  robbery   of Rs.1000/-  did  not appear to be probable  and  believable  and it appeared  to have been levelled  with a view to make the case cognizable. This aspect of the case  was not considered  by the learned Magistrate  while passing  orders for  summoning  the accused persons.  Similarly  there  was no  allegation in the  application under section 156(3) Cr.P.C.  that the  accused  Maya Shankar  was armed with  Gandasi  and the allegation  in that application was that  he  was  armed with Lathi only. This aspect of the case was also  not considered  by the learned Magistrate . It is  also to be seen that  in the injury report of  the  complainant  it  was stated by the Doctor that  his both the injuries  were caused  by pointed object but neither   Lathi nor   Gandasi are pointed object, and  this aspect of the case  was also not considered by the learned Magistrate .

It is true that  the defence of the accused  is not be considered  at the time of  summoning the accused  and  they have got no right  to say  at that time   but  if there is  infirmity  in the prosecution case  that  aspect  is to be considered  by the learned Magistrate,  and then suitable orders   should  be passed  in the case . In this case, the learned Magistrate  has not  complied  with the above  requirement of law , hence  the order passed by  the    learned Magistrate  can not  be sustained  and is set aside .  The  matter is being  remanded  to  the court of the Magistrate  for a fresh  order after considering   various aspects of the prosecution  case  as pointed out  above.

Accordingly, the  revision is  allowed. The  order  dated  7.11.05 passed by the     Judicial  Magistrate -II, Jaunpur  in  Complaint Case No. 1065 of 2005,  Indrapal Vs.  Shreepal and others, Police Station  Sikrara District  Jaunpur under sections 323,324,394,504 and 506 I.P.C is set aside  and the learned Magistrate  is directed to  pass  suitable orders after  hearing  the  complainant   in the light of the observations made  herein above.

Dated:17.5.06

MLK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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