Allahabad High Court
Kamlesh Shukla & Others vs State Of U.P. & Another on 21 July, 2011
Bench: Rajesh Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- CRIMINAL REVISION No. - 714 of 2009
Petitioner :- Kamlesh Shukla & Others
Respondent :- State Of U.P. & Another
Petitioner Counsel :- G.P. Dikshit
Respondent Counsel :- Govt. Advocate,Rajesh Kumar Singh,S.K.Singh
Hon'ble Rajesh Chandra,J.
Rejoinder Affidavit filed today is taken on record.
This revision has been filed by five revisionists against the order dated 23.11.2008 passed by the Additional Chief Judicial Magistrate, Court No. 11, Fatehpur summoning the revisionists for the offence under Section 120-B I.P.C.
In brief, the facts of the case are that on the basis of First Information Report lodged by Phool Singh Maurya, a case under Sections 147 and 364 I.P.C. was registered at Crime No.196 of 2005.
The case was investigated and a final report was submitted by the Investigating Officer in the court concerned. Not being satisfied with the final report, the Magistrate ordered for further investigation. The case was then investigated by the C.B. C.I.D. Thereafter, a final report was again submitted before the court. After submission of the final report, the complainant-Phool Singh Maurya lodged Protest Petition which was registered as a complaint case. The court proceeded to record the evidence of the complainant under Section 200 Cr.P.C. The court further recorded the statements of Chandra Prakash, Smt. Ramadevi and Raj Kumar under Section 202 Cr.P.C.
The Magistrate after going through the evidence recorded under the aforesaid two Sections i.e. Section 200 and Section 202 Cr.P.C. found that a case under Section 364 I.P.C. is made out against the non-applicants Rama Shankar, Bhola & Puti alias Krishna Kumar and that a case under Section 120-B I.P.C. was prima-facie, made out against the revisionists i.e. Kamlesh Shukla, Sunil Kumar, Dilip alias Guddu, Ram Kishore and Sudhir.
I have heard Shri G.P. Dixit and Shri P. Dixit, learned counsel for the revisionists, Shri S.K. Singh, learned counsel for the opposite party no.2 and the learned A.G.A.
The learned counsel for the revisionists vehemently argued that the trial court has committed illegality in passing the impugned order as there is no evidence of conspiracy against the revisionists. His contention is that the statements of the complainant and the witnesses were recorded during investigation which are entirely contrary to the statements which have been given by them in the complaint case and, as such, no reliance could be placed on them.
It was also argued that in the investigation, no case was found against the revisionists. The trial court did not consider these facts and has summoned the revisionists on the basis of statements recorded under Sections 202 and 200 Cr.P.C.
The learned A.G.A. and the learned counsel for the opposite party no.2, on the other hand, argued that the Magistrate has not committed any illegality or irregularity in passing the impugned order as the same is based on the evidence which was recorded by the Magistrate under Section 200 and Section 202 Cr.P.C. It was also argued that the Magistrate could not have gone through the statements which were recorded by the police or by the C.B.C.I.D. during investigation. It was only the evidence recorded under Sections 200 and 202 Cr.P.C. which could be looked into by the Magistrate and since the prima-facie offence was made out against the revisionists, the order of the Magistrate is fully justified and does not warrant any interference by this Revisional Court.
I have given my thoughtful consideration to the respective arguments.
The copy of the statement of the complainant- Phool Singh Maurya has not been filed along with the revision but there is a reference of that statement in the impugned order.
A perusal of the impugned order clearly shows that the complainant-Phool Singh Maurya has categorically stated that on 28.3.2005 at about 10.00 am, the present revisionists as well as Rama Shankar, Bhola, Puti alias Krishna Kumar had come to the house of the complainant and kidnapped his son who was playing out-side the house.
There is evidence of Chandra Prakash which is only against Rama Shankar, Bhola and Puti alias Krishna Kumar. The other witness Smt. Ramadevi has named Puti, Rama Shankar and Bhola and has stated that they were talking about the kidnapping of the son of the complainant and were also saying that the accused Ram Kishore was also involved in the kidnapping. Lastly, there is the statement of Raj Kumar who has stated that he had seen the kidnapped boy in the company of Sushil, Kamlesh, Mahendra, Guddu alias Dilip, Shiv Ram Madhu, Shiv Karan, Vijay Mishra, Aruna Shankar and Sudhir.
Thus, prima-facie, there is sufficient evidence against the revisionists for being summoned in the court.
At the time of passing the impugned order, the Magistrate was not required to consider the statements which were recorded during investigation. He was required to consider the evidence what was recorded by him under Sections 200 and 202 Cr.P.C. So far the statements recorded during the investigations are concerned, the accused may take the benefit at the time of examination of witnesses.
From the evidence, a case under Section 364 I.P.C. is made out against the revisionists as well but that can be considered by the court below while framing charges against the accused persons, if any.
At present, I am satisfied that the Magistrate has not committed any illegality in passing the impugned order as to order is based on evidence which was recorded under sections 200 and 202 Cr.P.C.
The revision is accordingly dismissed.
Order Date :- 21.7.2011
AK
