ARSHAD Vs. STATE OF U P

JUDGEMENT

(1.) Arshad has moved this petition under Section 482 Cr. P. C. for quashing of the order, dated 23rd March, 1985 passed by the Chief Judicial Magistrate, Lucknow summoning him under Section 323/325/504 I. P. C. as a case has been ordered to be regis tered under Section 190 Cr. P. C. I have heard the learned counsel for the parties and gone through the averments and various material brought on the record of this case. It appears that within the pre cincts of Niyamatullah Building, Aminabad, Lucknow an incident had taken place on 6. 2. 83 at about 2. 40 A. M. regarding which a report had been lodged at Police Station, Aminabad at 3. 10 P. M. by one Khurshed Asad Khan who had sustained injuries. This report was lodged against one Shakir Ali. It is mentioned in the petition that the peti tioner Arshad had accompanied Khurshid Asad Khan to the police station and there after had taken him for treatment at Balrampur Hospital. Annexure 2 has been filed which purports to be the report of Dr. M. N. Siddiqui, Medical Officer, Balrampur Hospital, Lucknow, dated 6. 2. 83. This report indicates that Khurshid Asad Khan was examined at 3. 30 P. M. and the said Khurshid Asad Khan was brought by Sri 'arshad Ali Khan who is the petitioner ,and whose address has also been mentioned along with the identifi cation mark. It appears that in the same compound on the same date some incident of marpit took place at about 3. 30 P. M. about which a report was lodged at 4. 40 P. M. at P. S. Aminabad which was registered under Section 323 I. P. C. In this report petitioner Arshad son of Shahid and Abrar son of Nisar Ahmad have been nominated as accused persons. This report was subsequently converted under Section 325 l. P. C. and a final report had been submitted under Section 169 Cr. P. C. for approval by the Magistrate. In this final report it is mentioned that nomination of the accused persons appears to be wrong and no witness corroborates the first informa tion report except the complainant and father of the complainant. This was the reason for submitting the final report. The learned Magistrate on receipt of this final report seems to have taken into account the injury report, X-ray report and other material. He was of the view that sufficient ground was there to proceed against the accused persons and, therefore, he rejected the final report and took cognizance of the offence under Section 190 Cr. P. C. and directed a case to be registered under Sections 323, 325, 504 I. P. C. in register No. 9. Thus the petitioner along with Abrar were summoned for 22nd April, 1985. It appears that matter has not proceeded thereafter and the matter has been brought before this Court by the petitioner for quashing of the said proceeding. I have heard the learned counsel for the parties and I find same substance in the submission so far as the petitioner is concerned that his nomination appears to be obviously false. The report of the first incident as mentioned above was lodged at 3. 10 P. M. while it is evident that the peti tioner along with Abrar and Khurshid Asad Khan injured reached Balrampur Hospital sometimes about 3. 30 P. M. It was 3. 30 P. M. that the injuries of Khurshid Asad Khan were examined. It is, therefore, inconceivable that some person could be present within the precincts of Niyamatullah Building and Balrampur Hospital at one and the same time. Nothing could be brought to the notice of the court in order to show that the peti tioner could have been present at the relevant time at Niyamatullah Building as has been mentioned in the first information report lodged by Shakir Ali naming Arshad as one of the accused. Obviously there appears to be some substance in the submission of the report submitted by Investigating Officer that accused has not been correctly named. Yesterday when the case was taken up an affidavit of Khurshid Asad Khan was filed in which it has been categorically asserted that a report had been lodged at 3. 10 P. M. in respect of the occurrence which took place at 2. 40 P. M. and that Sri Arshad and Sri Abrar who were present at the time of occurrence took the deponent to police station and the deponent lodged the F. I. R. in presence of Sri Arshad and thereafter he was accompanied to Balrampur Hospital where injuries of Khurshid Asad Khan were examined. Thus there is no room for doubt in my mind so far as Arshad is concerned. It appears that the learned Magistrate although has mentioned that he has perused the entire record but this important and relevant feature has not been in all probabilities noticed by him. It may be that Shakir Ali might have received injuries but at the hands of some other miscreants and out of fear he had not preferred to disclose their name correctly. The learned Magistrate ought to have looked into both the reports before registering the case under Section' 190 Cr. P. C. and pro ceeding to summon the petitioned as an accused in the case. In view of aforesaid discussion, I have no hesitation in holding that the order passed by the Chief Judicial Magistrate summoning the petitioner in connection with crime case No. 63/83 purporting to be under Sections 323, 325 and 504 I. P. C. cannot be sustained in the eyes of law and deserves to be quashed. .