Wasim And 3 Others vs State Of U.P. And Another
2019 Latest Caselaw 5205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?.
 
A.F.R. 
 
Court No. - 72
 

 
Case :- APPLICATION U/S 482 No. - 17207 of 2016
 

 
Applicant :- Wasim And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Rahul Srivastava,Bhuvnesh Kumar Singh
 
Counsel for Opposite Party :- G.A.,Mukhtar Alam
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Rejoinder affidavit has been filed today. Taken on record.

2. Heard Sri Bhuvnesh Kumar Singh, learned counsel for the applicants; Sri Mukhtar Alam and Sri Sudhir Dixit, learned counsel for the opposite party no.2 and; learned AGA for the State.

3. The present application u/s 482 Cr.P.C. has been filed to quash the summoning order dated 15.12.2015 as well as entire proceeding of Complaint Case No. 2658 of 2015 (Shahnawaz Vs. Daud & Ors.), under Sections 302, 307, 459 I.P.C., Police Station Kiratpur, District- Bijnor.

4. Learned counsel for the applicants submits, in the first place, there is non-compliance of the mandatory provision of law being the proviso to sub-section (2) of Section 202 Cr.P.C. Relying on the application filed by the opposite party no.2/complainant dated 03.11.2015 (to examine Dr. Upendra Singh and Dr. Prem Prakash) and another application to examine Dr. Ram Kumar and Sri Kuldeep Singh, it has been submitted, in the context of a complaint case, the offence alleged being triable exclusively by a Court of Sessions, it was mandatory for the learned Magistrate to first record the statements of all the aforesaid four witnesses before proceeding to issue process against the applicants. Also, in response to the decision cited by the learned counsel for the opposite party no.2 in Shivjee Singh Vs. Nagendra Tiwary & Ors., (2010) 7 SCC 578, it has been submitted, in that case, the facts were entirely and fundamentally different, inasmuch as the complainant in that case had given up the remaining two witnesses. Therefore, the ratio of that decision is distinguishable.

5. Second, it has been submitted, the prosecution lodged against the present applicants is wholly mala fide. In this regard, it has been submitted, on 18.07.2015, the incident had taken place wherein close relatives of complainant had assaulted the applicant no.1, his father and others. In that incident, the father of the applicant no.1 died of a gun-shot injury while applicant no.1 also received a gun-shot injury. Injuries to both persons had been caused from close range. Also, in the indiscriminate firing by the assailants, one of them i.e. Chhuttan also suffered a gun-shot injury. The panchnama and site-plan were prepared by the police authorities. The place of incident was found to be an open place from where blood stains and empty cartridges were recovered by the police. During investigation, four country-made pistols were recovered from Faizan, Imran, Rizwan and Azad.

6. Consequently, charge-sheet was submitted on 27.08.2015. Cognizance was taken and thereafter the case was committed for trial to the Court of Sessions on 06.11.2015 being S.T. No. 552/2015. Therein evidence was led and arguments heard. However, upon administrative order passed by the learned District Judge that trial case was transferred two days before the date fixed for delivery of judgement. The matter is thus pending. As to the present prosecution, it has been submitted, the same had been lodged with mala fide intention only to set up a completely false defence to the prosecution story in S.T. No. 552/2015. A wholly unbelievable case has been set up by the complainant that too 15 days after the incident, that he and others had been assaulted by the applicants inside their residence when certain injuries were suffered by Chhuttan as also the applicant and his father suffered gun shot injuries. Thus, it has been submitted, the complaint is nothing but an eye-wash and a pretence set up only to pressure the applicants to withdraw from the criminal case lodged by them. It is wholly mala fide. He has also relied on a decision of the Supreme Court in the case of M/s. Eicher Tractor Ltd. & Ors. Vs. Harihar Singh & Anr., (2009) 64 ACC 296. In that context, he has further placed reliance on para 102 (7) of the earlier decision of the Supreme Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors., (1992) Supp 1 SCC 335.

7. Opposing the present application, learned counsel for the opposite party no.2 and learned AGA would submit that in view of the decision of the Supreme Court in the case of Shivjee Singh Vs. Nagendra Tiwary & Ors. (supra), it is no longer res integra whether the proviso to the sub-section (2) of Section 202 Cr.P.C. is mandatory i.e. whether it is necessary for the learned Magistrate to first record statements of all witnesses named by the complainant before proceeding to issue process against the accused person. The choice being of the complainant to examine such witness as he may choose, merely because an application may have been filed earlier to examine some other witness as well, it would not bind the learned Magistrate to first record their statements also, even though prima facie he feels satisfied that a case was made out to take cognizance and issue process.

8. Merely because some other witnesses had not been examined did not prevent the learned Magistrate from taking cognizance and issuing process, at an earlier point in time, upon examination of other witnesses. In this regard, it is submitted, six witnesses had been examined in support of the complaint and the impugned order itself reflects that P.W.-1 Zaheer Ahmad; P.W.-2 Chhuttan; P.W.-3 Gulbahar Alam; P.W.-4 Rizwan and; P.W.-5 Ram Kumar had been examined under Section 202 Cr.P.C. while the complainant had also been examined under Section 200 Cr.P.C. It is after considering those statements and the complaint allegations that, at present, the learned Magistrate felt prima facie satisfied to proceed further. Therefore, relying on the decision of the Supreme Court in Shivjee Singh Vs. Nagendra Tiwary & Ors. (supra), it has been submitted, there is no illegality committed by the learned Magistrate.

9. As to the allegations of mala fide prosecution, it has been submitted, the present is a case where there are two narrations of one incident, one being made by the mother of the applicant no.1 and the other made by opposite party no.2 Shahnawaz. Inasmuch there is death caused on one side and grievous hurt injury caused on the other, it cannot be disputed that there is prima facie basis for the accusations made by both sides. The cause of the injury or death or the manner in which they were caused is what requires a trial to be held. According to the applicants, all injuries had been caused by the close relatives and associates of opposite party no. 2 and that fact allegation may be tried in S.T. No. 552/2015. However, the facts are otherwise. That fact allegation may be examined only in the trial that may arise on the complaint lodged by the opposite party no. 2. Both sides having led evidence to establish existence of prima facie case, it would be premature to reach a conclusion that the allegations made by opposite party no.2 are mala fide. It would remain a matter to be examined upon detailed evidence to be led by both sides. Only then the truth may be established.

10. In any case, it has been submitted that the present summoning order was challenged by one of the co-accused Shadab in Criminal Revision No. 6 of 2016 filed before the learned Additional Sessions Judge, Court No.2, Bijnor. It was dismissed by order dated 04.03.2017, a copy of which has been annexed along with the counter affidavit. Therefore, it has been submitted that, in any case, the ground of mala fide allegations may not be entertained in the present proceedings in view of the fact that the summoning order has already been affirmed by the revisional court (though at the behest of a co-accused) and which order has attained finality.

11. Having heard learned counsel for the parties and having perused the record, it is true that in Shivjee Singh Vs. Nagendra Tiwary & Ors. (supra), as a fact, the complainant had, after recording evidence of two out of four witnesses, given up the remaining two witnesses for reason of his apprehension that they had been won over by the accused. However, that distinction of the fact apart, the Supreme Court has, after making detailed consideration of the various provisions falling under Chapters XV and XVI of the Cr.P.C. and existing precedent, culled out the legal situation emanating therefrom. In paragraph no. 22 of that decision, the Supreme Court considered the usage of the word "all" appearing in the proviso to Section 202 (2) Cr.P.C. and found it to be qualified by the word "his", i.e. the complainant. It was then reasoned that such qualification implied that the complainant was not bound to examine all the witnesses named in the complaint or whose names may have been disclosed in response to the order passed by the learned Magistrate.

12. It was further clarified only those witnesses were required to be examined whom the complainant may consider material to make out a prima facie case for issue of process. It is then left to the choice of the complainant to examine or to not examine other witnesses once prima facie case had been made out according to him, i.e. the complainant. As to the consequence of non-examination of other witnesses, it was further held, the same is to be considered at the stage of trial and not earlier. The Magistrate has also not been required to make any detailed discussion on the merits or demerits of the case, at this stage. In view of that reasoning contained in the decision of the Supreme Court, it is not possible to draw a distinction being claimed by the learned counsel for the applicants. The distinction of fact, pointed out by learned counsel for the applicant, is, on the reasoning of the Supreme Court found to be inconsequential for the purposes of issuance of process.

13. It may have been a different case if, in the absence of any specific expression or application made by the complainant not to examine any further witness, the learned Magistrate has chosen to dismiss the complaint. In that case, the complainant may have felt aggrieved and sought remedies against such action. However, that reasoning is not available to the accused persons, since they have been summoned upon prima facie satisfaction having been recorded as to their complicity in the offence alleged being reached on the basis of statements already recorded. It is not the case of the applicants that on the basis of the statements recorded by the learned Magistrate, no offence was made out.

14. Thus, in view of the ratio of law laid down by the Supreme Court, it is not for the accused person to voice any grievance that no further witnesses named by the complainant had been examined and, therefore, the applicants had been prematurely summoned. Since it is not the case of the applicants that no prima facie case is made out against them on the basis of the complaint read with the statements already recorded, the argument advanced by learned counsel for the applicants, does not call for any further discussion. It is rejected.

15. As to the second objection raised that the complaint is mala fide, suffice it to observe, at present, there is nothing to doubt the occurrence of the injuries claimed by the complainant, inasmuch as even, according to the case of the present applicants, Chhuttan had received a gun shot injury in the incident that had taken place. As to which of the two versions of the incident is correct, it is not for this Court to hazard a guess at this stage to reach a conclusion that the present complaint is mala fide.

16. Though, there can be no doubt that the mala fide complaint or prosecution can never be allowed to proceed in the view of the decision of the Supreme Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. (supra) as followed in M/s. Eicher Tractor Ltd. & Ors. Vs. Harihar Singh & Anr. (supra), however, to reach that conclusion, the facts must be unequivocally clear to the court. At present, there is sufficient doubt as to which version of the same event is correct. Therefore, the plea of mala fide prosecution is also rejected, at this stage.

17. Further, in this regard, it also cannot be lost sight that in case of the co-accused Shadab, the summoning order that is under challenge in the present proceedings, has been upheld by the lower revisional court and that order has not been assailed by that co-accused Shadab. Though the applicants may not be bound by that order, however, in exercise of inherent jurisdiction under Section 482 Cr.P.C., the court cannot be unmindful of that order having been attained finality. In such fact circumstances and background of legal remedy availed by the said Shadab, he is likely to stand trial on the same fact allegations. For that reason also, I am disinclined to exercise the inherent jurisdiction of this Court, on behalf of other co-accused persons, facing the same fact allegations. The interest of justice and concern to prevent abuse of process of court appears to lie not in quashing the complaint at this stage but rather in allowing the complaint to proceed further.

18. Accordingly, the present application lacks merit. The prayer made to quash the complaint is declined.

19. However, in case the applicants appear before the learned court below within a period of 45 days and apply for bail, the learned court below shall deal with their bail application as expeditiously as possible, strictly in accordance with law, without being influenced by any observations made in this order.

20. With the aforesaid observations, the present application is disposed of.

Order Date :- 30.5.2019

Prakhar