Allahabad High Court
Smt. Manju Devi vs State Of U.P. And Others on 24 August, 2011
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL MISC. WRIT PETITION No. - 13605 of 2011
Petitioner :- Smt. Manju Devi
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Dhirendra Kumar Srivastav,V.P.Srivastava
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
This writ petition has been filed with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 7.7.2011 passed by Chief Judicial Magistrate, Chandauli in criminal case no.157 of 2011 (Manju Devi Vs. Santosh and others) whereby the application under section 156 (3) Cr.P.C. moved by the petitioner has been rejected. (Annexure no.5).
In brief, the facts of the case are that the petitioner moved an application u/s 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Chandauli alleging therein that on 6.5.2011 at about 7:30 p.m., when Rinku @ Dharmendra Tiwari, son of the petitioner, was returning home from his fields, the accused Santosh, Tribhuwan and other persons named in the application, surrounded Rinku @ Dharmendra Tiwari and threatened him with death. Rinku @ Dharmendra Tiwari ran towards his house and hid himself in the room. Santosh armed with country made pistol and Tribhuwan armed with licensed gun opened fire causing injuries to various persons. Accused Triveni caused head injury by lathi. In exercise of right of private defence, Rinku @ Dharmendra took out his licensed rifle. Accused Ritesh snatched the rifle from Rinku @ Dharmendra and fired at him, but Rinku @ Dharmendra escaped unhurt and in the meantime, police force came there and took the family members of the petitioner and Rinku @ Dharmendra to the police station. Rinku @ Dharmendra was arrested. The police did not register F.I.R. at the instance of Rinku @ Dharmendra despite information to S.P., I.G., D.G.P. and Principal Home Secretary. Therefore, an application u/s 156 (3) Cr.P.C. was filed on 13.5.2011. Injury report as well as x-ray report of Rinku @ Dharmendra were also filed in support of the application. Learned C.J.M., Chandauli rejected the application u/s 156 (3) Cr.P.C. on the ground that in respect of the murders of Arvind, Kshmakant and Santosh, F.I.R. has been lodged against Rinku @ Dharmendra , Dhananjay Tiwari, Jitendra Tiwari and Komal Tiwari. The incident is alleged to have taken place on 6.5.2011 at 7:30 p.m. and injuries of Rinku @ Dharmendra were mentioned in the G.D. No.38 on the same day at 20:15 hours whereas the medical certificate reveals that Rinku @ Dharmendra was medically examined on 8.5.2011 at 2:30 p.m. Four injuries were found, which could be 3 days old and, therefore, the facts mentioned in the application and medical evidence were contradictory. Consequently, the application was rejected.
Heard Sri V.P. Srivastava, senior advocate assisted by Sri Dhirendra Kumar Srivastava, learned counsel for the petitioner and learned A.G.A. for the State.
Since the F.I.R. has not yet been lodged, there is no requirement of issuing any notice to the prospective accused.
Learned counsel for the petitioner submits that the F.I.R. prima facie discloses commission of cognizable offence. The F.I.R. against the son of the petitioner was lodged under section 302 IPC in respect of murder of 3 persons whereas in the same incident, Rinku @ Dharmendra received injuries and fracture of right ulna was seen and the police were bound to register F.I.R. in a cognizable case and the Magistrate should not have rejected the application u/s 156 (3) Cr.P.C. simply on the ground that in the medical certificate dated 8.5.2011, duration of injuries was found about 3 days whereas the incident had taken place on 6.5.2011. The contention is that after 1 day, it is very difficult to say whether the injury is about 2 days or 3 days old.
The next contention of learned counsel for the petitioner is that F.I.R. has been lodged in respect of the same incident against the son of the petitioner and the son of the petitioner also received injuries in the same incident, cross F.I.R. should also be registered by the police and the Magistrate was not justified in rejecting the application u/s 156 (3) Cr.P.C.
Reliance has been placed on a decision of the Apex Court in (2004) 13 SCC 292 Upkar Singh Vs. Ved Prakash & others, wherein the Apex Court has held that a second F.I.R. in the nature of a counter case can be registered at the police station.
It is a established law that at the time of considering an application u/s 156 (3) Cr.P.C., the Magistrate has only to see whether cognizable offence is disclosed. The Magistrate is not empowered to critically analyze the material on record and to come to a finding that no case for investigation is made out. Learned Magistrate committed illegality in rejecting the application u/s 156 (3) Cr.P.C. on the ground that petitioner's case in the application and the medical evidence were contradictory on the point of time. If the Magistrate had any doubt, he must have left this point to be probed by the investigating officer and application u/s 156 (3) Cr.P.C. cannot be rejected on such ground.
There is already a F.I.R. in respect of the same incident wherein three persons from the rival side were done to death and in the same incident, the son of the petitioner also received injuries and, therefore, the application of the petitioner, which was in the nature of a counter case, is also be investigated by the police like a cross case, which is already being investigated by the police. It is not open for the Magistrate to shut out the case of one party from investigation when there is a cross case. It is desirable that if there are rival versions of an incident, both the versions should be investigated. In these circumstances, the only option open to the Magistrate was to direct registration of the F.I.R. in the cross case and the application u/s 156 (3) Cr.P.C. should not have been rejected on flimsy grounds.
The cross case is being investigated as crime no.159 of 2011 under sections 302, 307, 504, 506 IPC and 7 Criminal Law Amendment Act, P.S. Kotwali, District Chandauli.
Writ petition is allowed.
Impugned order dated 7.7.2011 passed by Chief Judicial Magistrate, Chandauli is quashed. Learned Magistrate is directed to decide the application u/s 156 (3) Cr.P.C. afresh in the light of observations made above.
Order Date :- 24.8.2011
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