MARKANDEY SINGH KUSHAWAHA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned counsel for the applicants.

(2.) The facts giving rise to this criminal revision are that on 21/12/1992, a first information report was lodged by Om Prakash Singh Kushwaha to the effect that after school was closed at 4.00 p.m. his son Vivek Kumar alias Pintoo was coming back to home with, Sudha daughter of his younger brother. He was intercepted by some person and under the pretext that his grand-mother has suffered from a snake bite and everybody is in the hospital and he has also been required there by his family members. Boy Vivek Kumar was thus taken away. Daughter Sudha however, went back to school and informed her teachers about this occurrence. Sudha was ultimately sent to her home by help of school staff. On knowing this happening a search was made but Vivek Kumar could not be traced in spite of the best efforts. On 24/12/1992, the body of the boy was found near Dadri Ghat of river Ganga at Ghazipur. On this information, case crime No. 806 of 1992, under Sections 364, 302, 109, 201 and 120, I.P.C. was registered at Police Station Kotwali, District Ghazipur. A confessional statement was given by accused Ram Bachan Kushwaha. His statement under Section 164, Cr.P.C. was recorded on 16/01/1993 by the Magistrate. The police after investigation filed a report under Section 173, Cr.P.C. against accused Ram Bachan and Radhey Shyam Singh Kushwaha. However it submitted a final report so far as present applicants are concerned. The complainant then filed a criminal complaint against applicants registered as criminal case No. 898 of 1993 before the Chief Judicial Magistrate, Ghazipur. It appears that the case was transferred to the Court of Assistant Chief Judicial Magistrate, Ghazipur where it has been renumbered as criminal case No. 1255 of 1993. The complainant examined himself under Section 200, Cr.P.C. and also examined three witnesses under Section 202, Cr.P.C. and also filed an affidavit of the Medical Official (Doctor) and other documentary evidence namely statement of Ram Bachan under Section 164, Cr.P.C. recorded by the court. The learned Assistant Chief Judicial Magistrate on basis of this material felt satisfied and summoned the applicants by his order dated 1/06/1994 under Section 364 and 368, I.P.C. which has been challenged in the present revision.

(3.) Learned counsel for the applicants has challenged the order on the ground that the applicants were not given any opportunity of hearing before summoning and the order is violative of principles of natural justice. It has been submitted that as final report was submitted by the police so far as the applicants are concerned, they ought to have been given an opportunity of hearing before passing the summoning order. Reliance has been placed on a decision of this Court in case of Gajendra Kumar Agarwal v. State of U.P., reported in 1994 ACC 341.