PRADEEP KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. The present application has been filed by Pradeep Kumar, Rajeev Kumar, Vinay Kumar, Dharma Veer and Rajesh, with the prayer to set aside the judgment and order dated 4-2-2006, passed by Additional Sessions Judge/ Special Judge, E. C. Act, Bulandshahr, in criminal revision No. 482/05, Pradeep Kumar & Ors. v. State of U. P. The applicants have also prayed for setting aside the order dated 16-8-2005 passed by Judicial Magistrate 1st, Bulandshahr in case No. 1765/05 under Sections 147, 148, 149, 323, 504, 506 and 395 IPC, P. S. Dibai, District Bulandshahr. By the aforesaid order dated 16-8-2005, the Judicial Magistrate has summoned the applicants for offences under Sections 147, 148, 149, 323, 504, 506 and 395 IPC and vide impugned order dated 4-2-2006 the Additional Sessions Judge/ Special Judge, E. C. Act, Bulandshahr has rejected the revision filed by the accused challenging the aforesaid summoning order passed by the Judicial Magistrate As the present applicants were summoned as an accused and their revision before the lower revisional Court was also rejected, hence this application under Section 482 Cr. P. C. for quashing of both the orders.

(2.) THE Facts encapsulated are that a FIR was lodged on 9-3-2002 at 4 p. m. by the informant respondent No. 2 Manoj Kumar in respect of an incident alleged to have taken place on 10-1-2002 at 10. 30 a. m. , which was registered as crime No. 145/05 under Sections 147, 148, 149, 323, 504, 506 and 395 IPC, at P. S. Dibai, District Bulandshahr. In the aforesaid FIR the informant Manoj Kumar had made the present applicants an accused. It is important to note that the two applicants Rajeev Kumar and Vinay Kumar are the real brothers of the informant. THE thumbnail sketch of the fact mentioned in the FIR was that the informant was also a partner in Kailash Gyan Talkies, which is situated on plot no 203 Railway Road, Dibai. On 10-1-2002 at 10. 30 a. m. he had gone to the accused Rajeev and Vinay Gupta who are his real brothers to inquire about the illegal construction over the plot as well as regarding the sale of the two generator sets, both belonging to the said Talkies THEre, he was assaulted by the applicants with kicks, fists, lathi and dandas and was also vituparised and threatened for life by the accused who were variously armed. Rajeev Kumar had a Katta in his hand and rest of the accused persons were armed with lathi and danda Rajeev Kumar and Vinay broke the lock of the godown of the informant, looted his 687 bottles of Pepsi soft drink, snatched away his golden chain and Rs. 213/-from the pocket of his shirt. THE informant received injuries in the incident and got himself medically examined at PHC on 10-1-2002. On alarm being raised by the informant Hari Om, Titu and many others rushed to the spot and saved the informant. As the report of the informant was not recorded by the police hence he filed an application before the higher officers alongwith his injury report but all in vain, therefore, he filed an application before the SSP, Bulandshahr and at his instance the FIR of the informant was registered against the culprits. A copy of the said FIR is Annexure 1 to the affidavit filed in support of this application. THE medical examination report of the informant has not been annexed alongwith the present application by the applicants. THE police of Police Station Dibai, after the investigation submitted a Final Report in the crime vide Annexure 2 to this application. THE protest petition of the informant dated 17-9-2002 in the said F. R. Case No. 17 of 2002 was treated as Complaint by the Additional CJM, Anoop Shahar titled as Manoj Kumar v. Rajeev Kumar & Ors. THE statement of the informant was recorded under Section 200 Cr. P. C. and that of his witnesses Hari Om, Dr. Awadh Bihari, Hari Shankar Varshney and constable Deep Chand Singh under Section 202 Cr. P. C. All the above witnesses supported the informant's version in all material particulars. Dr. Awadh Bihari stated that he had examined the injured Manoj Kumar on 10-1-2002 at 4. p. m. and he had received four injuries. Additional Chief Judicial Magistrate vide his order dated 29-8-2003 summoned the present applicants for the offences mentioned above. Accused filed an application for granting time but their application was rejected on 15-12-2003. Aggrieved by the both the above orders dated 29-8-2003 and 15-12-2003, the applicant accused Pradeep Kumar filed a revision before the Sessions Judge, Bulandshahr being criminal revision No. 71/04. Additional Sessions Judge, Bulandshahr vide his judgment and order dated 25-7-2005 (Annexure 8) remanded the matter back with a direction that one of the offences was triable by Court of sessions and the Magistrate had not followed the procedure provided under proviso to Section 202 (2) Cr. P. C. therefore, he directed the Magistrate to record the statement of witness Titu s/o Danveer and then pass a reasoned order in accordance with law on the complaint of the respondent No. 2. After the receipt of the record, the trial Court by his order-dated 16-8-2005 (Annexure 9) again summoned the applicants as accused for the offences under Section 147, 148, 149, 323, 504, 506 and 395 IPC. In the summoning order the Magistrate has observed that after receiving the record from the lower revisional Court, witness Titu had filed an application alongwith an affidavit that he had been wrongly named as a witness in the aforesaid case and the informant: had also filed an application that since Titu had connived with the accused persons, therefore, the informant respondent no 2 did not rely on his testimony and therefore, Titu be discharged. In this backdrop since the complainant did not rely upon the witness Titu, therefore, the Magistrate, on the material available on the record, had passed the summoning order on 18-6-2005 (Annexure 9 ). Aggrieved by the summoning order (Annexure 9) the present accused applicants preferred a revision being criminal revision No. 482/05 which was heard and rejected by the Additional Sessions Judge/ Special Judge E. C. Act, Bulandshahr vide order dated 4-2-2006 (Annexure 10 ). THErefore this application for setting aside the impugned orders as is mentioned in the opening part of this judgment.

(3.) LEARNED Counsel for the respondent No. 2 and learned AGA, contrarily, submitted that there was no need for the Magistrate to record the statement of Titu since he was not the witness of the complainant and the complainant had discharged him. They contended that under the proviso to Section 202 (2) Cr. P. C. the complainant is obliged to examine only those witnesses, on whom he places reliance. They further contended that since proceeding is not mala fide and in any view of the matter cognizable offences are disclosed against the present applicants, therefore, they must be prosecuted They also contended that1 the prosecution cannot be nipped into the bud as cognizable offences are disclosed and disputed question of facts cannot be adjudicated upon under Section 482 Cr. P. C. to thwart the legitimate prosecution. They further contended that the present application is devoid of merit and deserves to be rejected.