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KAILASH NATH PANDEY & ANOTHER versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Kailash Nath Pandey & Another v. State Of U.P. & Another - APPLICATION U/s 482 No. 12535 of 2007 [2007] RD-AH 10410 (5 June 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court no.1

Criminal  Misc.  Application No. 12535 of 2007

Kailash Nath Pandey  and another   Vs.  State of U.P. and another

Hon'ble R.K.Rastogi,J

This is an  application under section 482 Cr.P.C.  for   quashing  the summoning order dated  18.12.2006 passed by  the  III Addl.  Civil Judge( Jr. Division)/Judicial Magistrate Ist Class , Mirzapur in  Criminal Case No. 1141 of  2006, Ramesh Kumar Vs. Pankaj Kumar and others.

 Heard the  learned counsel for the applicants as well as the  learned A.G.A. for the State.

Since  the order passed by  the learned  Magistrate  suffers from  patent  defects,  I am passing  final  order  in this  case  at the admission stage  without notice to opposite party no.2.

The facts relevant for  disposal of this application  are that  the complainant opposite party no.2  filed a complaint  against  the accused applicants   in  the court of Judicial Magistrate, Mirzapur under sections  323,504 and 506 I.P.C.  and 3 (1)(10)   of S.C./S.T, Act  with these allegations  that  on 12.6.06 Ramesh Kumar Chamar  came out  of his house  at village Bandhawa, P.S.  Kachhawan District Mirzapur  at about 5 P.M. to graze  his cow . The accused   Pankaj Kumar  and   Kailash  Pandey  met him  in the way and   said to him " Saley Chamar Ki Jati Tumhara Itna Man Barh Gaya Hai Ki Gay Ko Khet Men Chhor Kar Charatey Ho". When he asked    them not to  abuse   him,the accused  beat  him with  Lathis, Dandas,   fists and legs  and tied him with a tree and threatened  to kill him.  Upon noise  Ram Lal  and  Babu Lal  etc. reached there. They  saw the  incident  and intervened. Then  he went to  police station Kachhawan and  submitted his report but  the  S.I. Did not lodge his report  and made a false promise  that  he would arrest the accused. On the  next day  the    complainant   went to the  P.H.C.  and got  the injuries  medically examined . Since the police did not take any action, he sent an application to the S.P. Mirzapur by registered post   but even then  no action  was taken. The accused were threatening him  every now and then   saying  that "Sala Chamar Kisi Din Ekant  Men Mil Jay To Isko Maja Chakhatey". Then he  lodged this  complaint.

The learned Magistrate  recorded  the statement of complainant under section 200 Cr.P.C. and  he also recorded the statements of   Ram Lal  and  Babu Lal  under section 202 Cr.P.c. . Thereafter he summoned the accused under section 323,504 and 506 I.P.C.  and 3(1)(10) SC/ST  Act vide order dated 18.12. 2006. Aggrieved with that order the accused  applicants have  filed  this  application  under section 482 Cr.P.C.

Learned counsel for the applicants  submitted before me  that the  offence under sections  3(1)(10) SC/ST Act  is triable  by  Special Judge (SC/ST  Act) and so  the case   is to  be  committed to the Court of  Sessions  by the Magistrate  for trial . He  submitted that  since the  case is triable  by the court of Sessions , the Magistrate  has to record  statements of  all the witnesses  including  formal witness like Doctor  and other police witnesses  etc.  under section 202 Cr.P.C., but  he did  not   do so in this case.  The complainant had filed  a copy of the injury report  and he also  stated that  he  had  got X-ray  of his injuries done   on the advise of the Doctor  but  neither the Doctor,  who medically examined the complainant,  was examined  under section  202  Cr.P.C.,  nor the X ray  plate  nor   X- ray report  was  summoned  nor  the Doctor, who  got the X ray  done, was summoned. He further  pointed out that in this case  the complainant has claimed  that he had  sent  report of the  incident to the S.P. Mirzapur on 6.7.07 by  registered post  and in  that  report  there  are allegations   regarding commission of  the  offence under sections 3(1)(10) of SC/ST Act  which is   a cognizable offence,  and  so it was essential   for the Magistrate  to  have   obtained report  from the S.P. Mirzapur as to whether  he had received   application dated 6.7.06  from the complainant or not, and if he had received  that application ,  what action  was taken  by him on that report ,  and whether  the matter has been got investigated or not, taking into consideration the provisions of   SC/ST Act,  and    the documents  regarding action , if any,  taken by the S.P. Mirzapur   on that report should also  have been summoned by the Magistrate, and   after  getting  recorded  statements of  all the  prosecution witnesses   and  obtaining report  of the police on the aforesaid application of the complainant dated 6.7.06, he  should have  passed  order in the matter. Since the learned Magistrate  has failed to  comply with the above requirements, the  impugned order  passed  by   him can not be  upheld  and  the same is liable to be set aside.

The application under section 482  Cr.P.C.  is therefore allowed.

The  summoning order dated  18.12.2006 passed by  the  III Addl.  Civil Judge( Jr. Division)/Judicial Magistrate Ist Class , Mirzapur in  Criminal Case No. 1141 of  2006, Ramesh Kumar Vs. Pankaj Kumar and others is  set aside and the case is remanded   to the court below  for further proceeding with the case  in the light of observations made  above in the body of the judgement, and then to pass an order in  the matter in accordance with  the provisions  of law.                

Dated: 5.6.06

MLK


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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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