SUDESH Vs. STATE OF U P

JUDGEMENT

(1.) -The three siblings Sudesh, Subhash and Sudheer all sons of Sri Ram Ratan Chaudhary have prayed for quashing of proceeding of Criminal Case No. 2249 of 2001, Crime No.10/01 pending in the Court of Chief Judicial Magistrate, J. P. Nagar, State v. Sudesh and others, under Sections 325, 323 and 504, I.P.C., police station Amroha Nagar, district J.P. Nagar. The interim prayer is for stay of further proceeding of the aforesaid case pendent lite.

(2.) THE facts of the case as is culled out from the affidavit and annexures filed in support of this application are that a non-cognizable report was lodged by Smt. Asha wife of Radhe Lal on 9.1.2001 at 4.45 p.m. at police station Amroha Nagar which was registered as N.C.R. No. 10/01, under Sections 323 and 504, I.P.C. in respect of an incident of even date at about 4.00 p.m. THE allegations levelled were that at the date and time of incident all the accused persons, namely, Sudesh, Subhash, Sudheer and Ram Ratan who bore enmity with the informant, abused her filthily and on protest being raised she was assaulted with lathi and danda. THE collected neighbours saved the informant. Subsequent to the lodging of N.C.R. the informant Smt. Asha Devi, Goverdhan and Jugnoo the three injured in the incident got themselves medically examined and X-rayed. THE X-ray report established that fifth metacarpal bone of the left hand of Smt. Asha Devi was fractured. On the basis of the said X-ray report the aforesaid N.C.R. was converted into a report of cognizable offence and the investigation was carried on thereafter. After investigation, the police submitted a charge-sheet under the aforesaid sections in the Court on 29.1.2001 which was registered as Case No. 2249 of 2001 in the Court of C.J.M., J.P. Nagar, under Sections 323, 325 and 504, I.P.C. From the record it transpires that withdrawal of the prosecution was ordered by the Government and an application Annexure-2 to the affidavit was filed for the said purpose vide letter dated 16.6.2005 written by Special Secretary Government of Uttar Pradesh addressed to the District Magistrate, Moradabad. THE contents of the aforesaid letter shows that in pursuance of the letter written by the District Magistrate dated 3.1.2005 the Government had decided to withdraw the aforesaid prosecution and hence the Governor U. P. gave permission for filing an application for withdrawal of the prosecution. In pursuance of the said letter dated 16.6.2005 the Assistant Public Prosecutor moved an application on 28.9.2005 mentioning therein that he has received the order for withdrawal of the prosecution and hence he prayed that in pursuance of the Government order the Court should permit him to withdraw the prosecution exercising power under Section 321, Cr. P.C. Alongwith the said application Assistant Public Prosecutor also appended the photocopy of the Government order as well as the order passed by the District Magistrate. On the application of withdrawal filed by the State the injured informant Smt. Asha Devi filed an objection on 18.4.2006 and 5.5.2006. In her objection she had stated that she is a poor person belonging to Scheduled Caste and her husband is a sweeper. She had further stated that the accused persons are muscle men and on the date of the incident her devrani (Jugnoo) and her sons were badly assaulted alongwith her. Because of the assault both had sustained lacerated wounds on their head regarding which the medical report and X-ray reports were available on the record of the case. She further stated that there had been no compromise between her and the accused persons and in the application for withdrawal by the State no reason was mentioned for recommending the withdrawal of the prosecution which was against the law and natural justice. It was also mentioned that there was a cross case of the incident as well which was still pending. THE said withdrawal application dated 28.9.2005 (Annexure-3) was rejected by the Chief Judicial Magistrate, J.P. Nagar on 10.5.2006 filed in the aforesaid Case No. 2249 of 2001 State v. Sudesh and others. THE said order dated 10.5.2006 was challenged in Criminal Revision No. 76 of 2006 before the Sessions Judge, J.P. Nagar who vide his order dated 2.11.2006 also rejected the revision filed by the State. Both the above orders are under challenge in this application and the proceeding is sought to be quashed.

(3.) IN view of the facts as has been stated above when I cogitate over the contentions raised by rival sides I find that the contentions raised by the learned counsel for the applicants are unmerited and deserves to be rejected. IN this case the prosecution side had sustained grievous as well as simple injuries. The parties had not compromised the matter at all. The prosecution of the cross case arising out of the same incident was going on which negates the factum of compromise. Withdrawal of prosecution of the present case which was a cross case under such fact was neither desirable nor warranted as it would have amounted to shutting down the defence for the accused persons in the case in which the present victim and injured persons were accused. This would have seriously prejudiced the right of the accused in the cross case who are informant and victim of present case. Cross cases means that the incident did take place and the rival sides have got their different versions in respect of the manner of the incident. IN such a view the interest of justice demanded that both the sides must be given a fair and reasonable opportunity to substantiate their version of incident during the trial, The case of none of the side should be thwarted and be nibbed into the bud at the very inception because it would have not only prejudiced the right of the victim in the cross case but would have put them in a precarious situation. Since, through the cross cases, the happening of the incident was admitted to both the sides there was no justification for the State Government to recommend withdrawal of the prosecution.