Allahabad High Court
Smt. Nandni Kashyap And 2 Others vs State Of U.P. And Another on 22 September, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 48
Case :- APPLICATION U/S 482 No. - 26068 of 2016
Applicant :- Smt. Nandni Kashyap And 2 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Rafeek Ahmad Khan
Counsel for Opposite Party :- G.A.
Hon'ble Pramod Kumar Srivastava, J.
1. Complaint case no. 17296 of 2015, (Surendra Raikwar Vs. Vimal Kashyap @ Ashok & 5 others) was filed for prosecution of proposed accused persons for offences u/ss 304-B, 147, 452, 323, 504 and 506 IPC. In said case the complainant had examined himself u/s 200 CrPC and two witnesses Bahgwati Raikwar and Neeraj Gupta u/s 202 CrPC. After considering those evidences the Chief Metropolitan Magistrate, Kanpur Nagar had passed order of cognizance and summoning dated 28.7.2016, by which all the six persons named in complaint were summoned for prosecution for offences u/ss 452, 323, 504 and 506 IPC. Out of those six persons, three accused namely Smt. Nandini Kashyap, Kapil Kashyap and Atul Kashyap have preferred present application u/s 482 CrPC challenging the proceeding of aforesaid complaint case and for quashing the same.
2. Learned counsel for the applicants contended that death of the victim Manju was due to ailment relating to gangrene, for which she was hospitalized, and in spite of proper treatment by the applicants, she died on 6.4.2015. In this matter, no post-mortem was conducted and there was no altercation between the parties before, at the time of or soon after death. His further submission is that in complaint case, false incident of 21.6.2015 was mentioned by the complainant (/opposite part no.-2), who is brother of victim Manju @ Soni. His further submission is that trial court had not properly appreciated evidences under Chapter XV CrPC and passed impugned order of summoning; therefore, proceeding of trial court should be quashed.
3. The learned AGA had opposed the contentions of applicants? side and contended that the defence version of applicants may be considered at the time of defence evidence during the trial.
4. From perusal of record including certified copies of documents made available before this court, it is found that trial court had rightly declined to pass order of cognizance for offence u/ss 304-B IPC because there was no prima-facie evidence relating to it. From perusal of record and evidences, it is found that there has been statements of witnesses u/ss. 200 and 202 CrPC that in the incident of 21.6.2015, for which order of cognizance and summoning was passed, only four persons namely Ram lal Kashyap, Vimal Kashyap @ Ashok, Atul Kashyap @ Ashok, and Vinod Kashyap @ Komal alongwith three unknown persons were involved. None of the witnesses adduced under sections 200, 202 CrPC, including the complainant had named Asha Kashyap and Nandini Kashyap as person present at the time of incident dated 21.6.2016. these witnesses had stated nothing about their involvement in any way in the incident in question. But the trial court had passed order of cognizance and summoning for six persons including those Asha Kashyap and Nandini Kashyap (applicant no.-2). If the evidences adduced u/ss 200 & 202 CrPC are taken to be true in its entirety, even then these two persons Asha Kashyap and Nandini Kashyap were not involved in the incident. Even in complaint case the presence of Asha Kashyap and Nandini Kashyap is not mentioned for incident relating 21.6.2015, for which order of cognizance and summoning was passed. Therefore, this court finds that impugned order dated 28.7.2016 passed by Chief Metropolitan Magistrate, Kanpur Nagar regarding cognizance and prosecution of Asha Kashyap and Nandini Kashyap (applicant no.-1) is erroneous, perverse and is without basis, which should be quashed, but considering the facts that for other summoned accused order of cognizance is supported with evidences. Therefore, said order, at this stage relating to other applicants/accused should not be interfered.
5. Ordinarily in such matters, notice should be issued to opposite party-complainant, but in this matter facts are so prominently clear that issuance of notice and inviting objection etc. would result in nothing but wastage of precious time of this Court, trial court and parties to proceedings of this case and other co-accused of complaint case under challenge. So notice is not being issued to complainant (O.P. no.-2). The error was not committed by the complainant but by the trial Court, that should be rectified.
6. It is made clear that if during prosecution, the evidences for any other offence or against any person is found, then the jurisdiction of trial court will not be barred to pass appropriate order in that regard, in accordance with law.
7. In view of the above, this application is partly allowed. The portion of impugned order dated 18.7.2016 regarding cognizance and summoning of Nandini Kashyap (applicant no.-1) and Asha Kashyap is quashed. It is directed that trial court will proceed with the trial of complaint case no. 17296 of 2015, Surendra Raikwar Vs. Vimal Kashyap @ Ashok and others pending in the court of Chief Metropolitan Magistrate, Kanpur Nagar against remaining accused in accordance with law.
Order Date :- 22.9.2016
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