KAMLESH ALIAS KULVEER Vs. STATE

JUDGEMENT

(1.) The applicant has invoked the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the summoning order dated 18.10.2006 passed by the learned Chief Judicial Magistrate, Bijnor in F.R. Case No. 98 of 2005, under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. This petition was directed to be connected alongwith Criminal Misc. Application No. 15459 of 2006 by order dated 1.3.2007. In the Criminal Misc. Application No. 15459 of 2006 the same order was challenged and this Court passed an order on 28.11.2006 staying the proceedings till next date of listing. Since in both the petitions the order under challenge is identical passed against the applicants and as such both the petitions are being decided by common order.

(2.) The prosecution case in the nutshell is that an application was moved under Section 156(3) Cr.P.C. by the opposite party No. 2 on 17.10:2005 before the Chief Judicial Magistrate, Nagina, Bijnor with the allegation that on account of litigation and political rivalry between the family of the applicants and the complainant on 9.10.2005 at about 8.30 p.m. when the complainant was sitting in the house of one Shiv Charan the applicants armed with tabal and lathi-danda entered into the house and started assaulting him. One accused Kamlesh was armed with tabal and the others were armed with lathi-danda. The complainant had received serious injuries of tabal on his head. Some other persons arrived at the spot and saved the complainant and while leaving the accused threatened him to life and taken away the spade of Shiv Charan. The persons who had reached there to save him had also sustained injuries, namely, Dharam Pal, Shiv Charan Singh and Nagesh alias Babbu but on account of fear of the accused/ applicants they could not medically examined themselves and on account of the influence of the applicants the first information report was also not lodged. The complainant's blood stained shirt was not taken by the police. The incident requires investigation to recover blood stained tabal and to collect evidence against the accused persons. The police on the direction of the Chief Judicial Magistrate, Bijnor inquired the case and has submitted a report on 19.10.2005 that the complainant had lodged an N.C.R. No. 35 of 2005 on 9.10.2005 at 10.15 p.m. against Yashpal with regard to the incident occurred at 6.45 p.m. On the basis of the medical report of the complainant the case was converted under Sections 323, 324 and 504 I.P.C. on 16.10.2005 as case No. C-1036 of 2005 in which after investigation the charge-sheet was submitted on 14.11.2005. against Yashpal. While investigation was going on in the aforesaid case the opposite party No. 2 moved the application under Section 156(3) Cr.P.C. on 17.10.2005 against five persons including Yashpal. The time of occurrence was disclosed at 8 p.m. in which final report was submitted on 5.12.2005. Aggrieved by the final report the opposite party No. 2 had filed a protest petition on 1.2.2006. The said protest petition of the opposite party No. 2 was accepted and rejected the final report and passed the order summoning the applicants under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. by order dated 18.12.2006. In respect of the same incident a cross N.C.R. was lodged under Sections 323, 504 I.P.C. at 12.45 p.m. on the same day by one Surendra Singh which was registered as NCR. No. 36 of 2005 and the charge-sheet was submitted under Sections 324, 323, 325, 504 and 452 I.P.C. The name of other persons were not mentioned except Yashpal in the first N.C.R. The injury of the complainant was simple in nature when it was examined at 11.45 p.m. on 9.10.2005. The charge-sheet has already been submitted in the N.C.R. No. 35 of 2005. The protest petition filed by the Investigating Officer in Case No. 1036-C of 2005 was rejected and summoned the applicants Niranjan Singh, Kamlesh, Vijendra and Hemraj under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. to face the trial by the impugned order dated 18.10.2006.

(3.) It is vehemently argued by Sri A.B.L Gaur, learned senior counsel assisted by Sri Pankaj Bharti that once the charge-sheet was submitted under Sections 324 and 504 I.P.C. on the basis of the medical examination of the opposite party No. 2 then in the absence of any other medical report the order taking cognizance under Sections 307, 323, 324, 379, 120-B, 504 and 506 I.P.C. is unsustainable. The Court below has passed the order without application of mind in respect of the same incident simultaneous proceeding as State case as well as complaint case against the same applicant is an abuse of the process of Court. The injury report of the opposite party No. 2 is one in respect of both the incident which is alleged to have been occurred at 6.45 p.m. while the other is said to have occurred at 8 P.M. though the medical examination report of the opposite party No. 2 is only one in respect of which the charge-sheet was submitted under Sections 323, 324, 504 I.P.C. The final report was also submitted by the police, which was illegally rejected by the learned Magistrate by looking into the case diary and the statement of the witnesses hence the summoning order passed by the Court below is unsustainable and is liable to be quashed.