Devender Gupta vs State of Haryana and others

MANISHA BATRA, J.

The present petition has been filed under Section 482 Cr.P.C. seeking quashing of the judgment and order dated 04.08.2017 passed by the learned Judicial Magistrate First Class, Gurugram in Criminal Complaint No.11 RBT of 2016/2017, whereby the petitioner and respondent Nos.3 to 5 were summoned to face trial for offences under Sections 307, 506 and 34 IPC and Sections 25 and 27 of the Arms Act, 1959.

Brief facts of the case, as emerging from the record, are that FIR No.246 dated 26.08.2005 was registered at Police Station Bilaspur, Gurugram under Sections 307, 506 and 34 IPC and Sections 25 and 27 of the Arms Act on the statement of one Vijay Pal, who has since died. The FIR was registered against Devender Gupta, Yogender Gupta, Mukul Gupta and Renu Sharma. During investigation, the matter was transferred to District Rewari. The Deputy Superintendent of Police, Rewari submitted a report dated 01.05.2006 finding that no case was made out against the present petitioner and certain other persons, while recommending action against respondent No. 2 Vikram Sharma and others. A cancellation report was accordingly submitted qua the present petitioners.

As further discernible from the record, Vijay Pal thereafter approached this Court seeking further action in the matter. Vide order dated 02.05.2007 passed in CRM-M-58225-2006, this Court directed him to oppose the cancellation report before the learned Ilaqa Magistrate by filing a protest petition. However, after his death, respondent No.2-Vikram Sharma filed a protest petition on 30.01.2008 questioning the report of the Deputy Superintendent of Police, Rewari. In support of the protest petition, preliminary evidence of SI Prem Singh, Dr. Raj Singh, Madan Lal and respondent No.2 himself was recorded and various documents were placed on record. The learned Judicial Magistrate, vide order dated 05.05.2014, dismissed the protest petition. Aggrieved from the same, respondent No.2 preferred Criminal Revision No.36 of 2014. The learned Additional Sessions Judge, Gurugram, vide judgment dated 17.11.2016, allowed the revision and remanded the matter to the learned trial Court for fresh consideration after taking into account the evidence on record. Thereafter, the learned Judicial Magistrate considered the preliminary evidence and, vide order dated 04.08.2017, summoned the petitioner and respondent Nos.3 to 5 to face trial for commission of offences punishable under Sections 307, 506 and 34 IPC and Sections 25 and 27 of the Arms Act. Aggrieved thereof, the petitioner has filed the present petition.

Learned counsel for the petitioner has argued that the impugned order is contrary to the record and law. The protest petition was not maintainable as respondent No. 2 had no locus standi to file the same. It is argued that there were material inconsistencies in the version of respondent No.2. The evidence led by him is not supported by the medical record and that no medical evidence was produced regarding the injuries allegedly suffered by respondent No.2 and his brother Mahesh. It is also argued that the alleged bullet injury to Vijay Pal is doubtful, as the material removed from his leg was described in the investigation as a metallic grey piece and no FSL report was produced. Learned counsel has further submitted that the statement of Vijay Pal was recorded after he had undergone an operation under general anaesthesia and, therefore, its genuineness is doubtful. It is also argued that the impugned order takes into consideration evidence which has already been led in the cross-case in which respondent No.2 is facing trial. The petitioner is being unnecessarily subjected to criminal proceedings arising out of a dispute relating to land and construction. While submitting that summoning an accused is a serious matter and that the Magistrate must apply his mind to the allegations and the evidence before issuing process, it is urged that the petition is liable to be dismissed.

Learned State counsel, on the other hand, has argued that the present petition is not maintainable against respondent No.1-State of Haryana as the criminal complaint in question is essentially between the petitioner and respondent Nos.2 to 5 and the State is not a party to the said complaint. It is further submitted that the facts relating to the complaint and the summoning order primarily concern respondent Nos.2 to 5 and, therefore, the present petition deserves to be dismissed qua the State.

Learned counsel for respondent No.2 has argued that the present petition is not maintainable as the summoning order could have been challenged by filing a revision before the learned Sessions Court. It is further argued that disputed questions of fact cannot be examined in proceedings under Section 482 Cr.P.C. and the respective versions of the parties have to be tested on the basis of evidence during trial. Respondent No.2 has a direct and substantial connection with the occurrence and was himself a victim of the incident. Therefore, he had the locus to file the protest petition, particularly after the death of Vijay Pal. The fact that respondent No.2 is himself facing trial in cross case shows his direct connection with the matter. The learned Magistrate had passed a detailed and reasoned order after considering the preliminary evidence. At the stage of summoning, the Court is only required to see whether a prima facie case is made out and is not required to conduct a detailed examination of the defence of the accused. The rival versions and other disputed questions can be properly considered during trial. It is, therefore, argued that no interference is called for in exercise of inherent jurisdiction. Hence, it is urged that the petition is liable to be dismissed.

This Court has heard the rival submissions.

It is well settled proposition of law that at the stage of summoning, the Court is not required to conduct a detailed appreciation of evidence or to examine whether the prosecution will ultimately succeed in securing conviction. The limited question is whether the material placed before the learned Magistrate discloses a prima facie case. In the present case, the learned Magistrate has considered the statements of the witnesses as well as the medical and documentary evidence. The record shows that PW-2 Dr. Raj Singh found an injury below the right knee of Vijay Pal and opined that the injury was caused by a firearm. The hospital record also shows that Vijay Pal was brought to the hospital with a history of firearm injury and was operated upon. The objections raised by the petitioners regarding the alleged inconsistencies in the evidence, the nature of the metallic piece removed from the leg of Vijay Pal, the absence of an FSL report, the timing of recording of the statement of Vijay Pal and the other discrepancies are matters which would require appreciation of evidence. Such an exercise cannot appropriately be undertaken in the present proceedings under Section 482 Cr.P.C., particularly when the learned Magistrate has found sufficient material to constitute a prima facie case. The objection regarding the locus of respondent No.2 to file the protest petition also does not call for interference and has been rejected by this Court by passing a detailed order of the even date in a connected petition bearing number CRM-M-14422-2017, filed by the petitioner and one co-accused.

It is also relevant that the learned Magistrate has not recorded a finding of guilt against the petitioner or any other accused. The order only directs them to face trial on the basis of the prima facie material available on record. The defence sought to be raised by the petitioner can be considered at the appropriate stage of the proceedings. Keeping in view the aforementioned facts and circumstances, this Court is of the considered opinion that no ground is made out for exercising the inherent jurisdiction to quash the summoning order dated 04.08.2017. Accordingly, the present petition, being devoid of any merit, is dismissed.