Satish Kumar vs State Of Uttarakhand & Others
2023 Latest Caselaw 1767 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

        Criminal Misc. Application No.14 of 2016
            (Under Section 482 of the Cr.P.C)


Satish Kumar                                    ........Applicant

                             Versus

State of Uttarakhand & others              ........Respondents

Present:-
      Mr. Vipul Sharma, learned counsel for the applicant.
      Mr. B.P.S. Mer, Brief Holder for the State.
      Mr. Aditya Singh, learned counsel for respondent nos.2 & 3.

                           Judgment Reserved on: 15.05.2023
                           Judgment Delivered on: 05.07.2023

Per: Hon'ble Pankaj Purohit, J.

This C482 application is directed against the judgment and order dated 26.02.2015, passed by learned First Additional Sessions Judge, Udham Singh Nagar in Criminal Revision No.105 of 2014, Satish Kumar vs. Ajay Kumar Singh & others, whereby the learned Additional Sessions Judge while rejecting the criminal revision affirmed the judgment and order dated 05.10.2013, passed by learned Chief Judicial Magistrate, Udham Singh Nagar in Criminal Case No.163 of 2012, Satish Kumar vs. Ajay Kumar Singh & others, whereby the learned Chief Judicial Magistrate, Udham Singh Nagar while accepting the Final Report No.6 of 2012, dated 30.03.2012, submitted by the Investigating Officer took cognizance against the applicant-Satish Kumar under Section 182 IPC, on the recommendation, so made by the Investigating Officer and issued summons to the

applicant to face the trial fixing a date of appearance on 31.10.2013.

2. The facts, which resulted into filing of the present C482 application, in short, are that the first information report was lodged by applicant-Satish Kumar on the basis of which, a chick FIR was lodged in Police Station SIDCUL Rudrapur, District Udham Singh Nagar on 22.03.2012 at about 09:20 p.m., on the basis of which a Case Crime No.14 of 2012 (FIR No.27 of 2012) under Sections 307, 120-B, 324, 323, 504 & 506 IPC was registered against respondent nos.2 & 3 and two other unknown persons.

3. In the first information report, it is alleged by the applicant-informant that respondent no.2-Ajay Kumar Singh, Company Officer of M/s Dukes Pvt. Ltd. Plot No.2, SIDCUL, Pantnagar got executed the work of plumbering and drain, sewer line of the entire factory from the applicant 5 years back and a sum of Rs.1,87,000/- was due for this work, which was not being paid by respondent no.2-Ajay Kumar Singh and owner of the factory, respondent no.3-Vikas Agrawal. On 16.02.2012, at about 06:30 p.m., the applicant was going to SIDCUL from Rudrapur riding on a cycle, suddenly, ahead of Marviya Band in front of orchard, the respondents along with two associates intercepted him and respondent no.2- Ajay Kumar Singh, on the instigation of respondent no.3- Vikas Agarwal, in order to kill the applicant committed marpeet with him by legs and fists and hurled abused at him. According to their conspiracy, respondent no.2 inflicted a blow on the applicant, by taking out a sword from the vehicle, with intention to kill him, by which, his

head was ruptured; he fell on the ground; respondent no.2 again assaulted him and his right hand was cut. It is further alleged in the first information report that on hearing the noise and commotion, nearby people and commuters reached on the spot and on seeing the people coming, respondent no.2 and his accomplice fled from the scene threatening the applicant that today, if he survived, he shall be killed on getting any chance.

4. It is further alleged in the first information report that applicant sustained severe injuries at the hands of respondent no.2 and others and he fell unconscious; he was taken to the hospital, where he was given treatment and his medical report was also prepared. The copy of the medical report is also annexed with the FIR.

5. It is case of the applicant that he went to the Police Station-SIDCUL for reporting the incident, but his report was not registered. The applicant through registered post on 18.02.2012, reported the incident to the Senior Superintendant of Police, Udham Singh Nagar; but, on that too, no action was taken and the applicant was left with no option, but to move an application/complaint under Section 156 (3) of Cr.P.C. in the court of learned Chief Judicial Magistrate, Udham Singh Nagar and it is only after the order passed by learned Chief Judicial Magistrate, on 16.03.2012, the first information report was lodged in police station as stated above.

6. The police, after investigation, submitted a final report, saying that, on the basis of investigation,

statements of the witnesses, location of mobile phones and medical report, it was found that no such incident, as alleged by the applicant happened and the first information report was only lodged with ulterior motive to get some money and to cause loss to the respondents- accused. The incident, according to the Investigating Officer, is a complete farce.

7. Not only the final report was submitted by the Police, but the Police also submitted a report along with a final report for prosecution of the applicant under Section 182 IPC.

8. The applicant submitted an objection to the final report alleging that the Investigating Officer did not record the statements of the applicant, and the witnesses, nor did was he taken to the place of occurrence by the Investigating Officer for inspection; applicant submitted his affidavit and affidavits of his witnesses, namely, Devendra Singh and Ramanand to the Senior Superintendant of Police, Udham Singh Nagar, on 12.04.2012, by registered post, which was not even included in the investigation by the Investigating Officer and the final report was submitted by the Investigating Officer under the influence of the respondents-accused. The applicant expressed his desire that he wanted to get himself and his witnesses examined before the court.

9. The learned Chief Judicial Magistrate on perusal of the record of the case, found that the applicant's statement under Section 161 Cr.P.C. was recorded by the Investigating Officer, on 25.03.2012 in C.D. Paper No.2 and in addition to this, collected other

evidences and on the basis of those evidence, the Investigating Officer arrived at a conclusion that the presence of the respondents-accused were not proved on the place of occurrence. It was further observed by the learned Chief Judicial Magistrate that on the basis of the mobile call details of the alleged eye witness of the incident-Devendra Singh, his presence was also doubtful, on the place of occurrence. Apart from this, from the call details of respondent no.2 and on the basis of the documents, it was also found by the Investigating Officer that respondent no.2 was not at the place of occurrence rather he was in his Company. The learned Chief Judicial Magistrate on examination of the record found that no interference is required in the final report and accepted it vide order dated 05.10.2013. As against this, from perusal of the case diary and other documents filed, in support thereof, the learned Chief Judicial Magistrate found that the report submitted by the Investigating Officer to take cognizance against the applicant under Section 182 of IPC was prima facie found correct and by this same impugned order, cognizance was taken against the applicant under Section 182 of IPC.

10. The applicant, feeling aggrieved challenged the impugned order dated 05.10.2013 by filing a Criminal Revision No.105 of 2014, Satish Kumar vs. Ajay Kumar Singh & others, in the court of First Additional Sessions Judge, Udham Singh Nagar. The learned Reivisonal Court after examining the record found no substance in the revision and rejected it vide impugned order dated 26.02.2015 and the judgment and order passed by the learned Chief Judicial Magistrate was affirmed. Hence,

the present C482 application has been moved by the applicant.

11. Heard Mr. Vipul Sharma, learned counsel for the applicant, Mr. B.P.S. Mer, learned Brief Holder for the State and Mr. Aditya Singh, learned counsel for respondent nos. 2 & 3.

12. Learned State Counsel candidly admitted that since after investigation final report has been submitted by the Police, therefore, no counter affidavit is required to be filed by the State.

13. With the help of learned counsel for the parties, I have gone through the impugned judgment and orders and found that in this case, a final report has been submitted by the Investigating Officer, which has rightly been accepted by the learned Magistrate. The reasons have meticulously been assigned by the learned Magistrate in para nos. 5, 6 & 7 of the impugned judgment and order dated 05.10.2013, which has not rightly been interfered by the learned Revisional Court. The Revisional Court has again meticulously examined the record of the case and found that the money, which was owed to the applicant by M/s Dukes Private Limited was already given to the applicant under a compromise vide Cheque No.411313 amounting Rs.40,000/- as a full and final settlement of his claim against the company and no payment was balanced against the company. The Revisional Court took reference of the receipt Paper No.6

(d)/21 and 6(d)/22 of the record, wherein the aforesaid fact, was written. The applicant along with his protest petition did not file any documents in rebuttal thereof.

Thus, the motive as alleged against respondent no.2 to commit marpeet and assault upon the applicant was not proved.

14. Learned counsel for respondent nos. 2 & 3 submitted that the work was never given to Satish Kumar, rather the same was done through contractor, namely, Sakeel, who submitted a bill of Rs.2,59,233/- and before the bill was submitted, the applicant was paid through Sakeel Rs. 1,79,000/-.

15. According to learned counsel for respondent nos. 2 & 3, applicant has also shown this payment; and, a payment of Rs.5,000/- twice in his bill book. When the matter was finally settled in the year 2008, there was no occasion to assault him, after a period of four years and that too, by respondent no.2, who is employee of the Company.

16. I have given a thoughtful consideration to the submissions made by learned counsel for the parties and I am of the considered opinion that in the case at hand, the final report has rightly been submitted by the Police, as no prima facie case was found by the Investigating Officer made out against respondent nos.2 & 3. Both the learned trial court as well as the Revisional Court has also examined the material collected by the Police during investigation and recorded a concurrent finding about the fact that the final report has rightly been submitted by the Police, after investigation.

17. In this view of the matter, I do not find any illegality, infirmity in the impugned judgments and orders in the C482 application. No interference is therefore,

required. Both the judgments and order passed by learned Chief Judicial Magistrate as well as the learned First Additional Sessions Judge, Udham Singh Nagar are hereby affirmed, but subject to one caveat that the cognizance taken by the learned Chief Judicial Magistrate against the applicant under Section 182 IPC, which has further affirmed by the learned First Additional Sessions Judge, Udham Singh Nagar is not sustainable, for the reason that, before taking cognizance and directing the applicant to face the trial, the mandatory procedure prescribed under Section 195 of the Cr.P.C. has not been acted upon.

18. From the material available on record, it is not reflected that the learned Magistrate before initiating prosecution under Section 182 IPC against the applicant did take any recourse to a procedure prescribed under Section 195 of the Cr.P.C. Under Section 195 of the Cr.P.C., it has been prescribed that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of Indian Penal Code (45 of 1860) except on the compliant in writing of the public servant concerned or of some other public servant to whom, he is administratively subordinate.

19. From perusal of the record, in particular, the final report submitted by the Investigating Officer, this Court does not find any such complaint as contemplated under Section 195 (1)(a)(i) of the Cr.P.C. by the Investigating Officer or his Superior Officer, to whom he was administratively subordinate. Both the impugned judgments and orders do not reflect the existence of any such complaint, as required under Section 195 of the

Cr.P.C., as stated above. Thus, this Court is of the considered opinion that the mandatory provisions of Section 195 of Cr.P.C. have been violated by the learned Chief Judicial Magistrate while taking cognizance and summoning the applicant under Section 182 of IPC.

20. In this view of the matter, that part of the order, by which, the cognizance under Section 182 of IPC has been taken against the applicant and he was summoned to face the trial of the impugned order dated 15.10.2013 is hereby quashed. The impugned judgments and orders are accordingly, interfered with only to this extent, whereby, the cognizance and summoning under Section 182 of IPC was taken against the applicant.

21. The C482 application is accordingly disposed of in the aforesaid terms.

(Pankaj Purohit, J.) 05.07.2023 AK