Amar Pal Singh vs State of U.P. and Others

K.N. Sinha, J.—By means of present application u/s 482 Cr. P.C. the applicant has sought the quashing of the order dated 20.11.1997 passed by Special Judge Dacoity, Etah in S.T. No. 60 of 1986, Amar pal Singh v. Soney Lal, and to proceed against the accused in pursuance of order dated 4.7.1996 and 5.2.1997.

The factual story set up in the F.I.R is that the informant and his uncle Mahipal Singh, Surajpal Singh, Sanjai Singh boarded private bus No.U.P.T. 2946 at 4.00 P.M wherein the opposite parties were also sitting. The informant''s uncle Mahipal singh has old licence of rifle and gun. The opposite parties also came with fire arm. At 4.10 P.M when the bus stopped and the passengers starting getting down, Soney Lai, opposite party No. 6, fired on Mahipal Singh. The informant''s father and grand father resisted whereupon the other opposite parties were caught hold by Suraj Pal Singh and few unknown person who looted the cash, cartridge, revolver and gun. By fire Mahipal Singh died on the spot and unknown person escaped with the looted revolver, gun and cash.

The brief facts giving rise to this petition are that applicant Amar Pal Singh lodged a report u/s 396 I.P.C which was registered as case Crime No. 97 of 1993 against opposite parties No. 2 to 6. After concluding the investigation the Investigating Officer submitted the final report. The applicant filed protest petition against the said final report and after considering the protest petition the final report was rejected and opposite parties 2 to 6 were summoned as accused. The opposite parties approached this Court by means of Crl. Misc. Application No. 3666 of 1996 wherein this Court directed the opposite parties to appear before the concerned court and file their objections then the trial court to pass the order. After this order of the court, the opposite parties asked for the copy of the case diary which was furnished. The opposite parties, however, did not appear hence the trial court confirmed the previous summoning order and issued summons. After the change of Presiding Officer the trial court without any reason passed another order accepting the final report.

Being aggrieved by the order of the trial court the present application has been filed on the ground that the opposite parties were summoned as accused after rejecting the final report against which the opposite parties approached this Court by means of an application u/s 482 Cr. P.C wherein this Court by order dated 11.9.1996 directed the present opposite parties to appear before the concerned court. The said order is annexure-7 on record.

I have perused the said order and find that this Court ordered the applicant to appear before the courts below within two weeks and to move an application for appearance. It was also directed that the court below shall consider and dispose of the application with a reasoned order.

What transpires from the affidavit is that the opposite parties never appeared before the trial court nor moved an application as directed by this Court, The court below then confirmed the previous order and issued summons, The accused then moved an application for recalling of the said order through counsel. The opposite parties did not comply with the order of this Court as directed while disposing of the Crl. Misc. application No. 3666 of 1996. Later on the court without giving any reason reviewed the said order and passed the impugned order accepting the final report. The opposite parties filed counter affidavit on the ground that the case was thoroughly investigated by the local police and also by the Crime Branch and it was found that the allegations set forth in the F.I.R was false and the opposite parties were named as accused on the basis of enmity. The Investigating Officer recorded the statement of the witnesses and staff member of the bus and found the story to be false. The order rejecting the final report and summoning the accused was ex-parte. Later on the court found that witnesses named in the F.I.R were related to the informant. The order dated 25.2.1997 was ex-parte and the court has power to review the same. The rejoinder affidavit was also filed and the allegation set forth in the affidavit of main petition were reiterated.

I have heard learned Counsel for the applicant and learned A.G.A. On the date of hearing, none appeared from the side of opposite parties No. 2 to 6 in spite of notice to the counsel. The crux of the matter is that when this Court issued direction in the Crl. Misc. Application No. 3666 of 1996 to appear before the court and file their application against the summoning order, whether the opposite parties appeared before the Court and filed application for recall of the summoning order or not. It is evident from Annexure 8 which is order dated 25.2.1997 that accused never appeared as directed by this Court. The order runs as follows.

Heard the learned Counsel for the complainant. The accused or their learned Counsel did not appear after 9.10.1996 nor they have filed any protest In compliance of the Hon''be High Court''s order dated 11.9.1996 in Crl. Misc. Application No. 3666 of 1996.

As such the accused be summoned as already ordered on 4.7.1996. Fixed 6.6.97.

Sd. 25.2.97.

This order speaks of non-compliance of the order of this Court by the opposite parties No. 2 to 6, as per para No. 6 of the affidavit. The order of this Court was filed before the courts below on 9.10.1996. The opposite parties should have appeared before the lower court within two weeks but the order dated 25.10.1997 (Annexure-8) clearly shows that the accused never appeared after 9.10.1996, Meaning thereby accused did not at all care for the order passed in the criminal misc. application which was filed by themself. The Court had no option but to pass the order dated 25.2.1997. As per para 7 of the affidavit the accused moved an application to recall the summons issued against them and ask for the copy of the case diary. They, however, never participated in the proceeding and the trial court without any reason accepted the final report reviewing the order dated 25.2.1997.

I have perused the said order and find that the court discussed the facts set forth in the F.I.R. cited Few judgement which are not applicable and simply by writing few lines that there was no ground for taking cognizance, held that there is no ground for summoning the accused. Nothing was said regarding the order dated 25.2.1997 by which the accused were summoned. This Court has directed that the accused shall file their protest against summoning order and then after hearing both the parties the order shall be passed. The order dated 25.2.1997 is clear that no protest was filed nor accused appeared. Thus, if the accused had appeared then order dated 25.2.1997 summoning the accused might not have been passed. However, there was no occasion for the Magistrate to pass the order on 20.11.1997. The Code of Criminal Procedure does not lay down any provision for review or recall of the order. Consequently, the application is allowed. The order dated 20.11.1997 passed by Special Judge, Dacoity, Etah in ST. No. 60 of 1986 is hereby quashed and the trial court shall, however, proceed against the accused in pursuance of the order passed by 25.2.1997.