Smt. Neelam Chandra And Others vs State Of U.P. And Anr.
2021 Latest Caselaw 3772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 74							
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4447 of 2013
 

 
Petitioner :- Smt. Neelam Chandra And Others
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Petitioner :- Hari Shanker Shukla, Smt. Sarita Shukla, Sudhir Dixit
 
Counsel for Respondent :- Govt. Advocate, Devesh Kumar Shukla, Dharmesh Kumar Shukla, Dinesh Rai
 

 
Hon'ble J.J. Munir,J.

1. This writ petition is directed against an order passed by Mr. Khalil Ahmad, the then learned Additional District and Sessions Judge, Court No. 13, Moradabad, dated 11.02.2013, dismissing Criminal Revision No. 216 of 2012 and affirming an order of the Magistrate dated 12.06.2012, accepting a final report put in by the police and taking cognizance of a complaint by the police, under Section 182 I.P.C. against the informant, her husband and the two witnesses.

2. It appears that a First Information Report (for short, 'FIR') dated 21.02.2012 was registered at the instance of the first petitioner, Smt. Neelam Chandra against respondent nos. 3 to 8 regarding an incident dated 29.01.2012, said to have taken place at 8:30 p.m., giving rise to Crime No. 196 of 2012, under Sections 395 and 397 I.P.C., Police Station - Civil Lines, District - Moradabad. This F.I.R. was lodged under orders of the Chief Judicial Magistrate, Moradabad dated 14.02.2012, passed under Section 156(3) Cr.P.C.

3. The prosecution case is that the informant, along with her husband stays in House No. 4/21, Court Compound, Civil Lines, Police Station - Civil Lines, Moradabad. Her husband had laid a complaint against his brother, Munish Chandra Gupta, a resident of Aligarh, to the effect that the latter had got their father's licensed revolver transferred to his name, without the consent of the other heirs. This complaint was made on 04.01.2012 to the Collector of Aligarh in writing. It is alleged in the F.I.R. that harbouring animosity on this account, on 29.01.2012, at about half past eight in the evening hours, her husband's brothers and brother-in-law, who are arrayed as respondent nos. 3 to 8 to this petition, came over to her residence. It is alleged that the informant and her husband were home alone at the time. The informant says that she and her husband asked the visitors to sit down and a conversation started between them. The accused respondents are said to have asked the informant's husband to withdraw his complaint relating to the revolver and further demanded that they be given a share in the informant's self-acquired house at Delhi, in exchange for rights in the house located at Moradabad. These demands were declined by the informant and her husband, with the informant's husband telling the accused respondents that how could the accused claim rights in his self-acquired property. It was also reported that the informant's husband told the accused that they were occupying his house for free over a long period of time, which would fetch a minimum rent of Rs.25,000/- per month. It is then said in the F.I.R. that on hearing what fell from the informant's husband, the accused respondents were infuriated and hurled filthy abuses at him. The accused reportedly said that the last time, they had got the informant's husband suspended and would ensure that this time, he was dismissed from service. The informant is said to have intervened in order to dissipate trouble, whereupon all the accused respondents, in concert, exhorted each other to do the informant and her husband to death.

4. It is further alleged that Subhash, Rajesh and Tushar caught hold of her husband and strangulated him using a neck scarf. It is further alleged that Awadhesh swiftly snatched the revolver from Munish Chandra Gupta and opened fire, with an intention to kill her husband, which, per chance, missed target. On this turn of events, the informant and her husband rushed inside their room to save their lives and were chased by Munish, Rajesh and Tushar. The three are alleged to have picked up the informant's husband's licensed rifle, kept in the room, which led to a scuffle. At this juncture, the doorbell sounded, which put the assailants on alert. The callers were Bhupendra Singh, son of Baljeet Singh and Kunwarpal Singh, son of Prasadi Singh, who had come over to invite the informant and her husband to an Akhand Ramayan Path and Bhandara. The accused respondents, on seeing the visitors, escaped, holding out threats of doing the couple to death and carried away the informant's husband's licensed rifle, bearing no. A/B-832017.

5. It is alleged in the F.I.R. that the police, when approached to lodge an F.I.R. at the station, did not oblige. The informant and her husband had sustained injuries, that were medically examined on 30.01.2012 at the District Hospital. The higher officers were informed, but to no avail. It was in these circumstances that attaching the medico-legal reports, the informant approached the Magistrate under Section 156(3) Cr.P.C., with a prayer that the Police be directed to register and investigate a case.

6. The Police, after registration of the case, investigated the same and submitted a Final Report dated 14.08.2012, with remarks that on a consideration of the statement of the prosecution witnesses, inspection of the place of occurrence, evidence about recovery of the looted rifle, it is apparent that a false prosecution had been launched to grab the parties' ancestral property by bringing oblique pressure upon the accused respondent nos.3 to 8. The said respondents were reported to have been falsely implicated.

7. A separate report was made on 14.08.2012 by the Investigating Officer to the effect that while investigating Crime No. 196 of 2012, he had come to the conclusion that the F.I.R. was lodged by the informant at the bidding of her husband, in order to mislead the Court and grab the other parties' share in the ancestral property, by bringing oblique pressure upon his brothers. It was further mentioned that the rifle was recovered from the parties' mother, Smt. Chanda Gupta, at Aligarh, who lives in a part of the ancestral house allotted to the share of the informant's husband. It was, therefore, recommended that for moving the Police with a false information against the accused respondents, relating to an alleged offence punishable under Sections 394 and 397 I.P.C., the informant, her husband and witnesses be punished for the offence under Section 182 I.P.C.

8. The Magistrate issued notice on the aforesaid Final Report to the first petitioner, who protested the same. The Magistrate heard parties on the Final Report on the first petitioner's protest, and by an order dated 12.06.2012, accepted the Final Report, rejected the first petitioner's protest and further ordered that the complaint presented by the Police against the first petitioner, her husband and the two witnesses, who are the petitioners here, be registered as a miscellaneous case. The order of the Magistrate dated 12.06.2012 was impugned by the petitioners before the learned Sessions Judge, Moradabad through Criminal Revision No. 216 of 2012. This revision came up for determination before the Additional Sessions Judge, Court No. 13, Moradabad, who heard and dismissed the same by his judgment and order dated 11.02.2013.

9. Aggrieved, this writ petition has been filed.

10. A counter affidavit has been lodged on behalf of respondent nos. 3 to 8, and a separate counter affidavit on behalf of the State. A rejoinder affidavit has been filed on behalf of the petitioners in answer to the counter affidavit filed on behalf of respondent nos. 3 to 8.

11. Heard Mr. Sudhir Dixit, learned Counsel for the petitioners. No one appears on behalf of respondent nos. 3 to 8. Mr. S.S. Tiwari, learned A.G.A., appears on behalf of the State.

12. Mr. Dixit has taken the Court through evidence in the Case Diary, particularly, the injury reports relating to Umesh Chandra Gupta, the second petitioner and Smt. Neelam Chandra, the first petitioner. He submits that the Courts below have discounted this evidence, while arriving at a conclusion that the informant's version is false. He further submits that the orders impugned are, therefore, vitiated for non-consideration of material evidence. It is particularly argued by Mr. Dixit that the Revisional Court has not at all adverted to the objection about a mechanical initiation of proceedings under Section 182 I.P.C. by the Magistrate for the asking of the police. It is his submission that the impugned orders are manifestly illegal and are liable to be quashed in the interest of justice.

13. Learned A.G.A. has opposed the petitioners' prayer to quash the impugned orders. He submits that the police have thoroughly investigated the matter and have, for valid reasons, concluded that the first information is a patently false case, brought by the first and the second petitioners, with a view to exert oblique pressure upon the second petitioner's brothers. He submits that the police have concluded that this pressure was sought to be brought upon the second petitioner's brothers in order to claim the whole of the second petitioner's ancestral property or to wrench a share therein larger than the said petitioner's entitlement under the law.

14. This Court has perused the orders impugned, the relevant record and keenly considered the submissions advanced by learned Counsel.

15. The learned Magistrate has recorded a finding that the Police recovered the looted rifle from the storage space of a double bed used by Smt. Chanda Gupta, the second petitioner's mother and the first petitioner's mother-in-law. The Magistrate noted the fact that Smt. Chanda Gupta told the Police that the rifle belongs to her son, Umesh Chandra Gupta and that her son had kept the rifle with her. Smt. Chanda Gupta also told the Police that the second petitioner has a share in the parties' ancestral house at Aligarh, where she stays. The Magistrate noted the fact that the rifle was recovered from the part of the house that falls in the share of the second petitioner, Umesh Chandra Gupta. It is also remarked by the Magistrate that the house had sizable number of effects belonging to Umesh Chandra Gupta. The Magistrate has concluded that from all these facts and the evidence collected, the incident about loot of the rifle is belied.

16. The Magistrate has then remarked about the medico-legal report relating to the first petitioner, Smt. Neelam Chandra, that the relevant medical report is on record, but in the F.I.R., the first petitioner has not said anywhere that she too was beaten up by respondent nos. 3 to 8. The Magistrate has then said that so far as the presence of the two eye witnesses, Bhupendra Singh and Kunwarpal Singh is concerned, their presence is explained in connection with the invitation to the Akhand Ramayan Path and Bhandara, that they had gone over to extend. The Magistrate has noted that the event was scheduled to be held on 29.01.2012, whereas the incident is reported to be one dated 29.01.2012, at thirty minutes past eight in the evening. The Magistrate has reasoned that if an invitation about the event had to be extended, it would have been extended earlier. It is also noted that the dinner following the event was scheduled for 30.01.2012. The Magistrate has, therefore, held the presence of the two eye witnesses doubtful. It is on the basis of these findings that the Magistrate has accepted the final report, rejected the protest petition and ordered registration of the police complaint under Section 182 IPC with a direction to proceed.

17. Now, so far as the Magistrate's order is concerned, the other conclusions that the Magistrate has recorded may be plausible and at best, may have a better view to them than that adopted by the Magistrate. For that reason, the Magistrate's order may not be vulnerable about those conclusions of his that admit of two possible views. But, there is one finding by the Magistrate that appears to be utterly perverse. It is about the injuries sustained by Smt. Neelam Chandra and the medico-legal report relating to those injuries. A perusal of the injury report relating to Smt. Neelam Chandra shows that she has sustained three contusions. The first of these is a reddish coloured contusion 5 cm. x 2 cm. in size present on the outer aspect of the left forearm 9 cm. above the left elbow joint. The second is a contusion 9 cm. x 3 cm. in size present on the back of left side 10 cm. below inferior angle of the left scapula, reddish coloured. The third is a contusion 8 cm. x 3 cm. in size present on the back of right side, reddish coloured. All the injuries have been opined to be caused by hard and blunt object. The nature of the injuries has been opined to be simple in nature and about one day old. This medical report was scripted on 30.01.2012, whereas the date of incident is 29.01.2012. In these circumstances, the mere fact that in the FIR there is no specific account about an assault on the first petitioner, cannot reasonably lead to the conclusion that this medico-legal report is of no consequence. The F.I.R., in fact, carries an allegation that after the first and second petitioners ran into a room to save their lives, the accused respondents, Munish, Rajesh and Tushar chased them inside. There, they picked up the second petition's rifle, which led to a scuffle. This kind of an account in the F.I.R. may prima facie be enough for the Court to look into the injuries, about which there is a medico-legal report. Of course, it would be for the Magistrate to draw his inference, whether a case worth proceeding against the private respondents is made out or not. This, the Magistrate would be required to do, reviewing the other circumstances that otherwise appear to have been dealt with by the Magistrate satisfactorily. Once the existence of the injury report as a relevant piece of evidence is considered, the other conclusions of the Magistrate would also require a review about them in the totality of the picture.

18. Quite apart, there is one evidence that has been omitted from consideration altogether. This is the injury report relating to the second petitioner, Umesh Chandra Gupta. Umesh Chandra Gupta has sustained as many as five contusions. It would be idle to detail the nature and the site of each of the five injuries here. All that is required to be said is that these injuries have been found to be caused also by a blunt and hard object and simple in nature. The duration of these injuries also prima facie tallies in point of time with the date of occurrence reported. The Magistrate, while writing the impugned order, has completely ignored from consideration the aforesaid medico-legal report of injuries relating to Umesh Chandra Gupta. Now, in the F.I.R., there is a specific case of assault by the accused, where Umesh Chandra Gupta was attempted to be strangulated. He was also engaged in a scuffle, when the rifle was allegedly snatched away from him. Therefore, to ignore from consideration the medico-legal report of injuries relating to Umesh Chandra Gupta would, in any case, vitiate the Magistrate's conclusion.

19. So far as the impugned order passed by the learned Sessions Judge is concerned, he has ignored from consideration each of these illegalities that this Court has noticed. The learned Judge has not at all bestowed consideration upon the possible effect of the Magistrate ignoring from consideration one medico-legal report and drawing perverse conclusions about the other for a trifling. The learned Judge's affirmation is, in substance, an affirmation of all the infirmities that vitiate the learned Magistrate's order.

20. This Court may clarify that we have not expressed opinion either way on the merits of the matter, whether the final report is to be accepted or rejected. It is for the Magistrate to do so all over again, but after considering all relevant evidence and considering the evidence on record in the right perspective, which he will do, bearing in mind the remarks of this Court carried in this judgment.

21. In the result, this writ petition succeeds and is allowed. The impugned orders dated 11.02.2013 and 12.06.2012 passed by the Courts below are hereby quashed, with a remit of the matter to the Magistrate to pass orders afresh on the final report put in by the police, after provision of opportunity to the petitioners, in accordance with law, bearing in mind the guidance of this Court carried in this judgment.

Order Date :- 17.3.2021

Anoop / I. Batabyal