Chhote Lal vs State Of U.P. And Another
2019 Latest Caselaw 3108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 66
 

 
Case :- APPLICATION U/S 482 No. - 39702 of 2017
 

 
Applicant :- Chhote Lal
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Prakash Chandra Pandey,Ajay Sengar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Heard Sri Ajay Sengar, learned counsel for the applicant, Sri N.L. Agarwal, learned counsel for the opposite party no.2 and Sri Ankit Srivastava, learned AGA for the State.

2. The present application has been filed against the order dated 23.10.2017 passed by the Chief Judicial Magistrate, Jalaun at Orai wherein the applicant- Chhote Lal has been summoned under Section- 302/34 IPC on the complaint lodged by the opposite party no.2- Shankar Dayal Verma.

3. Briefly, the daughter of the present applicant Ms. Jyoti was married to the deceased (Pankaj Verma s/o opposite party no.2). Also, it appears that, there existed a matrimonial discord in that marriage. The said Pankaj Verma died unnatural death by burning.

4. Arising from the aforesaid occurrence, the opposite party no.2 appears to have lodged a complaint at Jalaun wherein he accused- the present applicant and his family members of having poured kerosene oil on the said Pankaj Verma and set fire. On such complaint, the learned Magistrate examined the opposite party no.2-Shankar Dayal Verma and also one Kali Charan (PW-1) who is claimed to be an independent eye witness. Both witness appeared to have stated that the applicant and his family members had caused the burn injuries to the deceased. Also, a photocopy of the document claimed to be the dying declaration of the said Pankaj Verma has been filed with the complaint which has resulted in the summoning order.

5. Learned counsel for the applicant submits, undisputedly, the applicant is a resident of Chhatarpur in Madhya Pradesh, a place falling outside the territorial jurisdiction of Chief Judicial Magistrate, Jalaun. Therefore, in view of the amended provision under Section 202(1) Cr.P.C., the learned Magistrate was obligated to conduct an inquiry into the truthfulness or otherwise of the complaint allegations before taking cognizance and summoning the applicant.

6. Acting otherwise, the learned Magistrate mechanically summoned the applicant and his other family members without making any prior inquiry into the truthfulness or otherwise of the fact allegations.

7. Elaborating his submission, learned counsel for the applicant submits, neither there is any order in the order sheet postponing issuance of process nor to conduct an inquiry nor the order sheet reflects that such an inquiry was conducted. Upon receiving the complaint, the learned Magistrate appears to have recorded statements under Section 200 & 202 Cr.P.C. and directly issued process. This, in his submission was contrary to the law laid down by the Supreme Court in M/s Pepsi Foods Ltd. Vs. Special Judicial Magistrate, 1998 (5) SCC 749; National Bank of Oman Vs. Barakara Abdul Aziz & Anr., 2013 (2) SCC 488 and Aroon Poorie Vs. Jayakumar Hiremath, 2017 (7) SCC 767. The above principle is stated to have been followed and explained by a learned Single Judge of this Court in Pawan Kumar Yadav & Ors. Vs. State of U.P. & Anr., 2013 (83) ACC 344 as also by Punjab and Haryana High Court in Savera Sidhu Vs. Harieen Sidhu & Anr., 2011 (2) Cri.CC 697.

8. Sri Ankit Srivastava, learned AGA on the other hand submits that, the inquiry as is required by law had been conducted inasmuch as the learned Magistrate, after recording the statements under Section 200 & 202 Cr.P.C. as also after considering the document brought on record by the complainant applied his mind thereto and felt satisfied to proceed against the applicant. At this stage of the proceedings, no further or detailed examination was required to be made as that would be in the nature of exercise of power to be made while conducting the trial. The fact that the learned Magistrate may not have put any question to the witness would therefore, not be a factor that may indicate that no inquiry had been conducted. He has placed reliance on another decision of the Supreme Court in Shivjee Singh Vs. Nagendra Tiwary & Ors., 2010 (7) SCC 578.

9. Sri Niranjan Lal Agarwal, learned counsel for the opposite party no.2 has also submitted, at present, there is enough material and evidence to proceed against the applicant inasmuch as besides the complaint allegations there exist on record the statement of an independent witness as also a copy of the dying declaration in support of the complaint allegations. No further or detailed examination is required to be made in view of such material existing on record.

10. Having heard learned counsel for the parties and having gone through the material on record, there is no dispute that the applicant resides outside the territorial jurisdiction of the learned Magistrate at Jalaun. In view of the amendment, there is no dispute that the inquiry under Section 202(1) Cr.P.C. was necessary to be made before the process could be issued against the applicant.

11. As to the inquiry required to be made, the Supreme Court in M/s Pepsi Foods Ltd. (supra) had observed as under:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

12. Thus, though no straitjacket test was laid down by the Supreme Court as to the manner in which the inquiry may be conducted, however, the principle categorically laid down is that the order of the learned Magistrate must itself reflect that he had applied his mind to the facts and to the law. He was not to act merely because the complaint had been made and two witness in support of the complaint allegations had been brought before him. He was also obligated to examine the nature of the allegations and the evidence, both oral and documentary in support thereof as would be sufficient for the complainant to succeed in bringing the charge home against the accused. The Magistrate shall not act as a silent spectator, at this stage. It was also made open to the learned Magistrate to put questions to the witness who may have testified before him. The above exercise was required to be done to determine the truthfulness or otherwise of the fact allegations.

13. That test was further explained in National Bank of Oman (supra). In paragraph 9 of the judgment was observed as under:

"9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of inquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of inquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."

14. It is the above principle that was applied by this Court in Pawan Kumar Yadav & Ors. (supra) and the Punjab and Haryana High Court in Savera Sidhu (supra).

15. As to the judgment relied upon by the learned AGA in Shivjee Singh (supra), that was a case where the accused person was residing within the territorial jurisdiction of the learned Magistrate. Therefore, the question of conducting an inquiry was not involved. That decision is wholly distinguishable, for that reason.

16. As to the scope of inquiry, though it is true that no full dress trial is to take place at this stage, however, besides proving the guilt of the accused person, an inquiry has to be directed to determine the truthfulness or otherwise of the complaint allegations be made. In that regard, the learned Magistrate is empowered to apply himself objectively to determine truthfulness of the disclosure being made to him. The nature and scope of such an inquiry would vary from case to case. However, once that satisfaction is reached in an objective manner, upon application of mind, it may remain a matter to be examined during trial to draw conclusions of fact and law after full opportunity to the defence to cross examine the prosecution witness and to lead evidence in defence.

17. In the facts of the present case, though a document had been referred to as photocopy of the dying declaration, however, there is no inquiry made by the Learned Magistrate whether such a document actually exists. Neither the original of that document was referred to by the complainant or his witness nor has the learned Magistrate questioned the witness as to its existence and other relevant aspects. The date of the death is itself was 11.07.2015. Even according to the independent eye witness Kali Charan, he had seen the deceased suffering burns on 11.07.2015. He further claimed to have been informed by the deceased that the applicant and his other family members had poured kerosene oil on him (deceased) and set it on fire. However, the learned Magistrate has also not inquired from either the applicant or that witness whether any FIR was registered with respect to such incident and if not, why.

18. Those and others would be the most natural queries arising from common sense stand point. The death being claimed to have been caused due to unnatural causes, an FIR should have arisen specially when Dying Declaration was claimed to have been recorded. Such and other queries were imperative to be made to determine the element of truth in the allegations made in the complaint.

19. The test, at this stage, would neither be to determine the empirical truth of the fact allegation nor to prove the allegation beyond all reasonable doubt, yet, it must be conducted by an objective mind, accurately tuned to eliminate a bogus or vexatious action, at the outset. Once, the complaint would survive this test, all else would remain to be examined during the trial and no evidentiary value would attach to the conclusions drawn at this stage.

20. Thus the exact proof of the Dying Declaration and its impact on the allegations apart, since only a photocopy of such document was filed, the Learned Magistrate was obliged to inquire and be prima facie satisfied as to the existence of such a document before he may have issued the summons. No inquiry has been made in that regard. Further, other queries as may have appeared natural and reasonable may also have been made by the learned Magistrate to Kali Charon as that witness had not seen the occurrence but he only claimed to have been told of the occurrence by the deceased. Also, it is odd that though the complaint discloses occurrence of unnatural death of the deceased, caused by burning and it also claims existence of a Dying Declaration, yet, there was neither a post Mort done nor an F.I.R. lodged. At the same time, the learned Magistrate has not made any inquiry into those aspects of the matter, as well. That inquiry would also reflect on the truthfulness or otherwise of the complaint. In absence of such inquiry, the learned Magistrate appears to have proceeded without the necessary satisfaction. The whole trial, if allowed to take place may end up to be fishing or roving inquiry.

21. It may be clarified, the points of inquiry noted above are merely indicative and not exhaustive. They have been noted only to illustrate the approach required to be taken but not to lay down a rule or the exact path to be followed by the learned Magistrate, who must act in the spirit of principle laid down by the Supreme Court in National Bank of Oman (supra).

22. Accordingly, the present application is allowed. The order dated 23.10.2017 passed by the Chief Judicial Magistrate, Jalaun at Orai is set aside and the matter remitted to the learned Magistrate to pass a fresh order after conducting a proper inquiry, in accordance with law. The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order.

Order Date :- 18.4.2019

Abhilash