The Allahabad High Court while allowing the petition said that the powers of the inquiry court are not fettered in any manner and it may call the witnesses, if in its view their evidence may prove useful for just decision in the matter for the purpose of summoning the accused persons.
A Single Bench of Justice Jyotsna Sharma passed this order while hearing a petition filed by Amit Kumar.
The petition has been filed by the petitioner-Amit Kumar with a prayer to issue a writ, order or direction in the nature of certiorari for quashing the judgment and order dated 21.09.2013 passed by the Sessions Judge, Jalaun at Orai in Criminal Revision by which the Judge has rejected the revision of the petitioner, which was preferred against the order dated 24.05.2013, passed by the Chief Judicial Magistrate, Orai in Criminal Case under Sections 307, 504, 506 IPC, Police Station Kotwali Orai, District Jalaun.
The Relevant facts are as below:-
(1) An FIR case under sections 307, 504 and 506 IPC, naming three persons including the petitionerAmit Kumar was lodged by Shatrughan Singh, alleging that three persons lay in wait and attacked his brother Satyabhan Singh when he went to attend call of the nature at about 3:15 am on 28.11.2001; all the three were holding firearms, one of them Ajai Kumar Sharma fired at him which hit on his right side below the shoulder; seriously injured he fell down; on his cries, the first informant and other members of his family reached the spot to save him but the accused persons escaped, extending threats to his life.
(2) After the investigation, the investigating officer submitted a final report with the opinion that the incident was doubtful and that the accused persons were falsely named.
(3) The first informant moved a protest petition which was treated as complaint; the informant/the complainant was examined under section 200 Cr.P.C; certain witnesses namely, the injured-Satyabhan, Ranbir Singh and Mohit were examined under section 202 CrPC.
(4) The C.J.M thereafter proceeded to summon Amit Kumar and Arvind Kumar Sharma for offence under Sections 307, 504, 506 IPC by an order dated 24.05.2013.
(5) The accused preferred Criminal Revision, which was decided by the Session Judge, Jalaun at Orai by on order dated 21.09.2013, whereby the order passed by the Court of C.J.M was affirmed and revision rejected.
(6) Now one of the accused Amit Kumar is before this Court, invoking writ jurisdiction under Article 226 of the Constitution and has challenged both the aforesaid orders.
The contention of the petitioner is that at the time of the incident, he was on duty and therefore the investigating officer submitted a final report on 17.01.2002; the allegation in the FIR is that at about 3:15 am on 28.11.2001, three persons attacked the injured and only one of them i.e, Ajai Kumar Sharma actually fired on Satyabhan; Admittedly, Satyabhan sustained a single firearm injury, through and through over his right arm.
The forceful contention of the petitioner is that his name has been dragged in the FIR falsely and that no case against him is made out in view of the facts that there was a single injury and the role of fire has been assigned to one Ajai Kumar Sharma only but said Ajai Kumar Sharma, who was named (and was assigned main role) was never summoned and the only other co-accused Arvind Kumar Sharma has died.
Further submission is that in fact it is the first informant-Satrughan Singh @ Pappu Singh, who had murdered Arvind Kumar Sharma. An FIR case under sections 364 and 302 IPC has been registered against the first informant; he has also been chargesheeted.
Argument is that the C.J.M did not consider the evidence on record and passed an arbitrary order, which is not sustainable in the eyes of law. The Court of revision too, did not notice the relevant facts and circumstances and agreed with the view taken by the C.J.M, in a most mechanical way and declined to interfere, hence the petitioner has no remedy except to invoke powers under Article 226/227 of the Constitution.
The Court noted that,
Admittedly, the protest petition has been treated as a complaint. In the protest petition, the first informant named Ranbir Singh and Mohit Singh as the witnesses, who came on the spot and identified the accused persons.
It is also alleged in the protest petition that the co-accused-Ajai Kumar Sharma did not pay the price of the articles transferred on his assurance, therefore there has been a dispute between him and the injured on this issue. The Court, while treating the protest as a complaint, called upon the complainant to produce his witness under section 202 CrPC.
The witnesses of fact i.e, Satyabhan (the injured), Ranbir Singh (the alleged eye-witness) and Mohit Singh (another eye-witness), were examined. The trial court took a view that at the stage of summoning only, a prima facie case has to be established and that there is no need to examine the rest of the witnesses. And passed summoning order against Arvind Kumar and instant petitioner under sections 307, 504, 506 IPC.
The Court observed that,
In this session, only three witnesses of fact have been examined at the stage of inquiry before summoning. Admittedly, the doctor who examined the injured has not been summoned and examined under section 202 CrPC.
While considering the provisions of law under section 202(2) Cr.P.C, this Court in Smt Gudiya vs State Of U.P And 5 Others, held that ordinarily in a case exclusively triable by the Sessions Court, the complainant has to produce all the witnesses. In case he is unable to produce any of the witnesses on the premise that such witnesses are not under his command or are not his witnesses even then the Magistrate who is conducting the inquiry, may summon those witnesses for the purpose of recording his “prima facie satisfaction” with regard to summoning of the accused.
The Court further observed that in the matter, the trial court as well as the court of revision, ignored the important provisions of law under section 202(2) CrPC. The approach of the Courts was casual and cavalier. Even the doctor who had examined the injured was not summoned. His examination was quite important to draw an inference whether prima facie an offence under section 307 IPC is made out against the accused persons. Any summoning order passed ignoring the mandatory provisions of law is vulnerable and is liable to be set-aside.
In view of the above, the Court allowed the petition and the impugned orders are set-aside.