Allahabad High Court
Purnvasi And 4 Others vs State Of U.P. And Another on 8 February, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 1161 of 2023
Applicant :- Purnvasi And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Jitendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Alok Kumar Sharma, holding brief of Sri Jitendra Singh, learned counsel for the applicants and learned A.G.A for the State and perused the record.
The instant application under Section 482 Cr.P.C. may be filed assailing the legality and validity of the summoning order dated 30.06.2022 passed by Civil Judge (Jr. Division), Siddharth Nagar in Criminal Complaint No. 1677 of 2019 (Gautam Bhatt Vs. Purnmasi and Others).
Contention raised by learned counsel for the applicants that F.I.R. was lodged through 156 (3) Cr.P.C. application one Gautam Bhatt, under sections 324, 504, 506, 302, 147 IPC against Purmasi, Subhash, Jangali, Shankar and Khetu.
Since matter relates to alleged murder of one Gorakh Nath Bhatt and after deep investigation the police has submitted a closer report on 04.04.2016 when the same was progressed the case was converted into a compliant case.
Contention raised by the counsel that in all fairness the procedure laid down in Chapter XV of Cr.P.C ought to have been adhered by learned Judicial Magistrate.
I have perused the summoning order dated 30.06.2022 in which the statement under section 200 Cr.P.C. was recorded by complainant himself. PW-1, PW-2 and PW-3 were recorded under section 202 Cr.P.C.
Learned counsel for the applicant has drawn attention of the Court to the provision of section 202 (2) Cr.P.C. which reads thus:-
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provide that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
In addition to this learned counsel for the applicants has further relied upon judgment of this Court in the case of Jaykaran Singh and 5 Others Vs. State of U.P. and Another
"16. Lastly it is contended that the Chief Judicial Magistrate, Hamirpur was conscious of the fact that the criminality alleged in the complaint is cognizable by the Court of Sessions and therefore, rightly passed the order dated 19th August, 2017 directing the complainant to get examined all the witnesses as required under Sections 202 (2) Cr.P.C. However, the complainant only produced himself and four witnesses, namely, Balram, Rohit, Gyan Singh and Kunwar Kant. Neither the doctor, who conducted the autopsy of the deceased Munim Singh nor the Investigating Officer who conduced the investigation of Case Crime No. 701A of 2013 were produced. As such, the impugned summoning order dated 6th November, 2017 is bad in law."
Thus, taking into totality and circumstances and the mandatory provision as well as the law laid down in the aforesaid case of Jaykaran (Supra) the impugned order is hereby quashed. The matter is remanded back with direction to the court below strictly adhere provision of Section 202 proviso in Cr.P.C. in its letter and spirit, pass a fresh order within a period of 4 weeks from today.
With this aforesaid observation the present 482 Cr.P.C. application stands disposed of.
Order Date :- 8.2.2023
Vikram
