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KRISHNA SWARUP & OTHERS versus SRI KANT & ANOTHER

High Court of Judicature at Allahabad

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Krishna Swarup & Others v. Sri Kant & Another - APPLICATION U/s 482 No. 7950 of 1987 [2007] RD-AH 3528 (1 March 2007)

 

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

Court No.11

Criminal Misc. Application No. 7950 of 1987

( under section 482 Cr.P.C. )

Krishna Swarup and others ....Vs....Sri Kant and another.

...........

Hon'ble V.D.Chaturvedi, J.

This is a petition under section 482 Cr.P.C. to quash the order dated 21.4.1987 passed by the Special Judge, Dacoity Affected Area, Orai in Criminal complaint case No.5 of 1986 whereby the petitioners were summoned for an offence under Section 392 I.P.C.

The relevant facts are that Sri Kant filed a complaint on 22.2.1986 in the Court of Special Judge, Dacoity Affected Area, Jalaun at Orai against the petitioners stating therein that on 18.2.1986 the petitioners Awadhesh, Krishna Swarup and Bharadwaj have beaten the complainant, the report of  which was lodged by him at P.S.Kathauri; that after having knowledge of the said report, the petitioners became annoyed, hence on 21.2.1986 the petitioners Krishna  Swarup, Awadhesh Kumar, Bhardwaj and Arun Kumar have beaten him again and have looted him of Rs. 250/-; that the accused persons (petitioners herein) have restrained the complainant from going to P.S.Kathaur, therefore, he gave its information to S.S.P. Orai. After filing of the complaint  the statement of the complainant Sri Kant and that of the witnesses Ashok Kumar and Mahesh were recorded on 22.2.1986 and thereafter the petitioners were summoned by order dated 21.4.1987, which is under challenge.

The learned counsel for the petitioners contended that the trial court summoned the F.I.R. dated 18.2.1986 regarding the incident dated 18.2.1986 but it could not be made available; that the court passed the impugned order dated 21.4.1987 in the absence of the said F.I.R. He argued that if the trial Judge was satisfied with the statement of the complainant and the witnesses, there was no need to summon the F.I.R dated 18.2.1986 and the delay in passing the impugned order could be avoided. He argued that the summoning of the F.I.R dated 18.2.1986 indicates that the trial Judge was not satisfied with the statements of the complainant and his witnesses. Therefore, the summoning of the accused, in the absence of the F.I.R. dated 18.2.1986, was not proper.

In case the trial Judge has made an order summoning the F.I.R. dated 18.2.1986, the non production of the said F.I.R. creates no bar for the trial Judge for summoning the accused for another incident dated 21.02.1986. The delay, if any, in passing the summoning order cannot be a ground to quash the summoning order.

His another argument is that when the police  was investigating the  case regarding the incident dated 18.2.1986 it was incumbent upon the trial Judge to stay the proceedings of the complaint and to call for a report on the matter from the police officer conducting the investigation.

In the complaint  the incident complained of was the incident dated 21.2.1986 and not the incident dated 18.2.1986. The incident dated 18.2.1986 was referred in complaint, only for the purpose of showing the motive that the incident dated 21.2.1986 was committed by the petitioners on account of the F.I.R. lodged by Sri Kant for the incident dated 18.2.1986. The stay of the proceedings of the inquiry under sub section (1) of Section 210 Cr.P.C. is essential only when it appears to the Magistrate that the investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry (complaint). In the case in hand the subject of inquiry by the trial Judge was the incident dated 21.2.1986 whereas the investigation, if any, was pending regarding the incident dated 18.21986. In such circumstances the stay of proceedings of the complaint case was not desired under section 210(1) Cr.P.C.

The next argument of the learned counsel for the petitioners is that the offence  under section 392 I.P.C. is a "scheduled offence" triable by the Court of Special Sessions Judge under the Dacoty Affected Areas Act. Hence it was incumbent upon the complainant to examine all of his witnesses under section 202 Cr.P.C. as provided in sub section (2) of Section 202 of Cr.P.C.

The proviso to sub section (2) of Section 202 Cr.P.C. runs as thus :

"Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath :"

The First Schedule appended to the Criminal  Procedure Code shows that the offence under section 392 I.P.C. is an offence triable by the Magistrate of the First Class and not the offence exclusively triable by the Court of Session.

The offence under section 392 I.P.C., under Dacoity Affected Areas Act is a "schedule offence"  hence triable by the "Special Sessions Judge, Dacoity Affected Areas" and not an offence exclusively triable by the "Court of Session" under the Code of Criminal Procedure. The offence "triable exclusively by the Court of Session"  referred in proviso to sub section (2) of Section 202 Cr.P.C. means and covers only those offences which under the First Schedule of the Code of  Criminal Procedure are the offences triable by the court of Session and not otherwise. The offence under section 392 I.P.C. is an offence triable by the court of Magistrate under the First Schedule of Cr.P.C. hence it was not incumbent upon the complainant to examine all of his witnsses under the proviso to sub section (2) of section 202 Cr.P.C.

No other point has been raised.

In view of what has been discussed above the impugned order passed by the Special Judge, Dacoity Affected Areas, Orai warrants no interference.

The petition under section 482 Cr.P.C. is, therefore, dismissed.

Certify this order to the court below.

Dt.1.03.2007

Sh


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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