Annu @ Anil vs Rajesh and Others

R.C. Mishra, J.

With consent, the matter is finally heard.

This is a petition, u/s 482 of the Code of Criminal Procedure, for a direction to issue process against all the three respondents. In this regard, the petitioner is aggrieved by order dated 28.10.2010 passed by Sixth Addl. Sessions Judge, Sagar, in Criminal Revision No. 195/2010, affirming rejection of his complaint against the respondents in respect of the offences punishable under Sections 147, 148, 149, 294, 323, 324, 307 and 392 of the IPC. The complaint was filed on 31.8.2009, impleading as many as 7 persons including the respondents as accused. However, in view of the fact that after due investigation, charge-sheet for the offences under Sections 294, 506B and 307 read with 34 of the IPC had already been submitted by the police against the other 4 persons arraigned as accused in the complaint, learned Magistrate proceeded to ascertain whether sufficient grounds for initiating action against the respondents for all the offences, existed The question was answered in the negative for the reasons recorded in the order-dated 16.8.2010, that formed subject matter of the revision.

According to the petitioner, at the time of lodging of the FIR, although he had stated that all the seven persons including the respondents were involved in attempting to kill him by inflicting injuries with various weapons yet, the scribe only recorded the names of Sattu @ Satyanarayan Kesharwani, Sunnu @ Sohan, Avinash Kesharwani and Chhota @ Akash Kesharwani. Thereafter, on 13.8.2009, he made a representation to the Superintendent of Police against non-registration of case against the respondents, while inviting attention to the aforesaid misconduct of the writer of the first information as well as to the fact that in the statement recorded by the Executive Magistrate as his dying declaration, their names and respective roles were clearly mentioned.

In support of the allegations made in the complaint, the petitioner subjected himself to examination and also produced 8 other witnesses including the Executive Magistrate and Medical Experts.

A bare perusal of the order-dated 16.8.2010 (supra) would reveal that the complaint was dismissed for the following reasons -

(i) At the time of recording of the so-called dying declaration, condition of the petitioner was not so critical as to justify need for calling of the Executive Magistrate for the purpose.

(ii) Gopal Singh, the Executive Magistrate, was not able to explain as to whether he was called to the hospital by the treating doctor or by the investigating officer.

(iii) In the statement recorded by the Executive Magistrate, on 5.8.2009, the respondent nos. 1 and 3 were not specifically named as offenders.

(iv) No cogent explanation was furnished by the petitioner for not mentioning the names of the respondents in the FIR as well as in the case diary statement recorded on 5.8.2009 only.

(v) There was no medical opinion suggesting that while lodging the report or giving statement before the investigating officer, the petitioner was not in a fit mental condition.

Learned Counsel for the petitioner has submitted that in his examination, Gopal Singh, the Executive Magistrate, clearly stated that he had recorded the dying declaration upon receipt of letter of request from the investigating officer. However, it is well settled that a person should not be dragged into Court merely because a complaint has been filed against him.

All the material aspects of the matter whether legal or factual have been considered by learned ASJ in a right perspective while affirming the order-dated 16.8.2010 (above). The scope of interference, u/s 482 of the Code, with a revisional order is limited in view of the rider placed by sub-Section (3) of Section 397 of the Code. Accordingly, this Court may correct any mistake committed by the revisional Court only where, on examination of the record, it finds that there is grave miscarriage of justice or abuse of the process of the Court or the required statutory procedure has not been complied with or there is failure of justice. But, no such case is made out. There is yet another aspect of the matter. As pointed out already, after due investigation, charge-sheet in respect of the aforesaid offences has already been presented against four persons named as co-accused in the complaint and in such a situation, in the course of trial, on the basis of the evidence if it appears to the trial Judge that any person not being the accused in the trial has committed the offence and the case is made out for exercise of power u/s 319 of the Code for proceeding against such person, it will be open to him to proceed accordingly and the present order will not come in the way in exercise of his power u/s 319 of the Code (See. Jile Singh Vs. State of U.P. and Another,

For these reasons, the petition stands dismissed.