The Allahabad High Court has set aside the summoning orders issued in violation of the rules.
A Single Bench of Justice Nand Prabha Shukla passed this order while hearing an application filed by Shishupal Singh and 4 Others.
The application under Section 482 Cr.P.C has been filed to quash the order dated 25.01.2023 as well as the summoning order dated 26.05.2023 passed by the Chief Judicial Magistrate, Kanpur Dehat in Complaint Case under Sections 147, 308, 323, 504, 506 IPC, Police Station Gajner, District Kanpur Dehat as well as the entire proceedings of the aforesaid complaint case pending in the Court of Chief Judicial Magistrate, Kanpur Dehat against the applicants.
Counsel for the applicants submitted that the opposite party no 2 Smt Manju Shukla moved an application dated 25.03.2022 under Section 156 (3) Cr.P.C on the basis of which a First Information Report dated 02.04.2022 was registered as Case under Sections 147, 308, 323, 504 IPC, Police Station Gajner, District Kanpur Dehat alleging that on 15.03.2022 her two sons Gopal Shukla and Ram Shukla were going to their fields on a motorcycle and were ambushed by the applicants near the house of village Pradhan Rekha Singh (wife of applicant no1 Shishupal Singh).
Shishupal Singh hit an axe on the head of Gopal Shukla and Ram Shukla was assaulted with sticks. Upon hearing about the incident, her other two sons Govind Shukla and Chhotu Shukla went to rescue the injured and found them lying unconscious. At the place of occurrence, a Milk Dairy was situated owned by Bhanu Pratap Singh, whose employee, namely, Shubham Shukla fired with a country made pistol of 315 bore causing injury to Akanshu.
On 15.03.2022, Gopal Shukla was medically examined at District Hospital, Kanpur Dehat.
After the registration of the FIR, the investigation was conducted and the Closure Report/Final Report dated 26.04.2022 under Section 173(2) Cr.P.C was prepared and submitted before the concerned Court. Against the said Closure Report/Final Report the opposite party no 2 moved a protest petition which was treated as a complaint case vide order dated 25.01.2023 passed by Judicial Magistrate, Kanpur Dehat and after examining upon oath the complainant and the witnesses under Sections 200 and 202 Cr.P.C, the Chief Judicial Magistrate, Kanpur Dehat by order dated 26.05.2023 summoned the accused/ applicants to face trial.
It was thus submitted that as no such incident took place as alleged, therefore after conclusion of investigation, a Final Report/Closure Report dated 26.04.2022 was submitted. But the Trial Court without application of mind had rejected the Final Report/Closure Report. The Protest Petition moved by the opposite party no 2 was treated as a complaint case and the accused/applicants have been summoned to face trial without any reasoned and speaking order and, therefore, it is liable to be set-side. The Trial Court recorded a wrong finding which was not based on the material recorded under Sections 200 and 202 Cr.P.C, therefore, the findings recorded by the Trial Court was perverse and was liable to be set-aside.
Per contra, A.G.A as well as counsel for the opposite party no 2 vehemently opposed the above submissions of the counsel for the applicants and submitted that there is no illegality or perversity in the order impugned. The Trial Court on the basis of the material under Sections 200 and 202 Cr.P.C has rightly summoned the applicants to face trial.
The Court observed that,
Having heard counsel for the parties and upon perusal of the record it transpires that the Trial Court has not applied its judicial mind while passing the impugned summoning order. The impugned order contains the substance of the examination of the complainant Smt Manju Shukla on oath recorded under section 200 Cr.P.C, who is not an eyewitness of the incident. There is no whisper of statement on oath of Gopal Shukla and Ramji Shukla, two injured examinees on oath who were the material witnesses. There is no description about the nature of injuries inflicted to the injured Gopal though from the perusal of the records, it transpires that it was simple in nature caused by a hard and blunt object. The alleged injured witness Ramji Shukla was not even medically examined. There are certain other noticeable discrepancies.
“It appears that as an afterthought, the application under Section 156 (3) Cr.P.C has been moved after a delay of about 10 days on the basis of false and fabricated injury report to mount pressure and to settle the score in the cross case, i.e, Case under Sections 34, 307, 323, 504 IPC, P.S Gajner, District Kanpur Dehat, which was registered prior in point of time. The said injuries can be fabricated. After the investigation, the Police advertised the filing of Closure Report/Final Report.
However, the Trial Court without application of mind rejected the said Final Report and on the basis of the protest petition of opposite party No 2 summoned the applicants to face trial in a cursory manner by taking cognizance obviously under section 190(1)(a) of the Cr.P.C and proceeded against the applicants by issuing process under Sections 147, 308, 323, 504 and 506 IPC. Therefore, the summoning order is bad in the eyes of law.
The Court is of the considered opinion that the mandate of provisions of Sections 200 and 202 Cr.P.C has been clearly violated. The Trial Court should have carefully scrutinized the complete material to find out the truthfulness of allegations and the basis of prima facie satisfaction before summoning the applicants at the time of recording of preliminary evidence. Thus, the orders dated 25.01.2023 and 26.05.2023 are not tenable”, the Court further observed while allowing the application.
The Court set aside the order dated 25.01.2023 passed by Judicial Magistrate, Kanpur Dehat and the summoning order dated 26.05.2023 passed by the Chief Judicial Magistrate, Kanpur Dehat in Complaint Case under Sections 147, 308, 323, 504, 506 IPC, Police Station Gajner, District Kanpur Dehat.