Rajesh Kumar Gupta vs State of U.P.and Another

Vinod Prasad, J.—The above three applications arises out of the same incident and proceeding and, therefore, all the three cases are clubbed together and are being disposed off by this common judgment.

An incident of robbery occurred on 2742002 regarding which a F.I.R. was lodged by Manoj Kumar Agarwal @ Chinni Babu as Crime No. 822 of 2002 under Section 394 I.P.C. According to the version of the F.I.R. on 2742002 when the informant after closing his Sugar Shop in Mohalla Sahamatganj was returning to his house alongwith Rs. 5,000/ then at 8.45 p.m. in front of his house, three unknown boys came towards Viduraj Hospital and at gun point they committed robbery of Rs. 5,000/ from the informant and ran away with it. Informant raised hue and cry and chased them on which the culprits fired at him causing him injuries. Hue and cry raised by the informant attracted Sarvesh Kumar, Dr. Sanjay, Rajeev, Sandeep and others who all reached the spot and saw the incident. The culprits continued to fire towards the witnesses as well as a result of which Sandeep and Sarvesh Kumar also sustained injuries. The informant also made a fire from his licensee revolver causing injuries to one of the culprits whose identity was later on disclosed as Anil Kumar Kashyap. Rest of the robbers made their escape good. Injured Sarvesh Kumar was rushed to Sheel Hospital immediately. Informant Manoj Kumar Agarwal @ Chinni Babu carried injured witness Sandeep alongwith him and lodged a F.I.R. at the police station Kotwali, Bareilly the same date as the aforesaid crime.

In respect of this very incident another F.I.R. was lodged by Rajesh Kumar Gupta as Crime No. 822A of 2002 against Manoj Kumar Agarwal @ Chinni Babu as the murderer. According to this F.I.R. on 2742002 at 8.45 p.m. informant Rajesh Kumar Gupta accompanied by Sarvesh Kumar, Vikas Gupta and Kadegiri had gone on a business trip to Bareilly. When they were returning to their house on 2742002 at 8.45 p.m. then accused Manoj Kumar Agarwal @ Chinni Babu gave a call to them on which prosecution party stopped. Manoj Kumar Agarwal @ Chinni Babu shot Sarvesh Kumar from his licensee revolver uttering that he had taught a lesson for demanding money. Sarvesh Kumar fell down after sustaining gun shot injury who was carried to Sheel Hospital immediately where he was declared dead. The cause of this murder was a business rivalry. The first informant Rajesh Kumar Gupta lodged the F.I.R. on 2842002 at 7.30 a.m. at P.S. Kotwali, District Bareilly under Section 302 I.P.C. against Manoj Kumar Agarwal @ Chinni Babu, which was registered as a cross case.

The investigation of Crime No. 822A of 2002 has got a checkered history as during the investigation of this Crime No. 822A of 2002 lodged by Rajesh Kumar Gupta, (revisionist in the above two revisions) and the applicant in the above Criminal Misc. Application, the police was endeavouring to file a final report, consequently, the informant, Rajesh Kumar Gupta and his witnesses Kadegiri and Vikas Gupta gave affidavits to the higher police officers. However, it transpire that the investigation of the said offence was transferred from Bareilly to Pilibhit. It was subsequently retransferred to P.S. Kotwali, District Bareilly and then was finally handed over to SIS, Bareilly. The checkered transfer of investigation from one police station and other police station generated a feeling to insecurity in the minds of the informant Rajesh Kumar Gupta, consequently, during the pendency of investigation, he filed a Complaint Case No. 7996 of 2002 before the Chief Judicial Magistrate. In his complaint, the complainant examined himself, under Section 200 Cr.P.C. that very day and his witnesses Vikas Gupta and Kadegiri under Section 202 Cr.P.C. on 28102002 and 1112002. He also filed an application for summoning the postmortem report etc. relating to the deceased. The C.J.M., Bareilly vide his order dated 17 12003 summoned the accused Manoj Kumar Agarwal @ Chinni Babu under Section 302 I.P.C. and fixed 19112003 for his appearance before him. In the summoning order, C.J.M., Bareilly has specifically mentioned that besides the statements under Sections 200 and 202 Cr.P.C., the complainant had filed the inquest report, copy of chik F.I.R., medical examination report, postmortem report and certified copy of the written F.I.R. etc. C.J.M. Bareilly has also observed that the police had wrongly filed final report in the said Crime No. 822A of 2002 lodged by the applicant Rajesh Kumar Gupta.

Aggrieved by the aforesaid summoning order dated 1512003/17 102003 accused Manoj Kumar Agarwal @ Chinni Babu preferred two separate criminal revisions, being Criminal Revision No. 423 of 2003 by which he was summoned by C.J.M. vide his order dated 15102003/17102003 and another Criminal Revision No. 12 of 2004 against rejection of final report filed by the police before Sessions Judge, Bareilly. Both the aforesaid revisions filed by the accused Manoj Kumar Agarwal @ Chinni Babu were allowed by Sessions Judge, Bareilly vide his impugned order dated 2072004, consequently, the informant/complainant has filed two revisions in this Court being Criminal Revision No. 3735 of 2005 by which the lower Revisional Court has set aside the order of C.J.M., Bareilly rejecting the final report and remanded the matter back to C.J.M. Bareilly and another Criminal Revision No. 3736 of 2005 by which lower Revisional Court/Additional Sessions Judge, Court No. 3, Bareilly had set aside the summoning order of the accused dated 15102003/1710 2003 for offence under Section 302 I.P.C. The informant also filed a Criminal Misc. Application No. 4133 of 2006 on 1842006 by which he had prayed for setting aside the order dated 273 2006 by which in the connected S.T. No. 1100 of 2002, State v. Anil Kumar Kashyap and Ors., under Sections 302, 394 and 411 I.P.C. started on the F.I.R. of Manoj Kumar Agarwal @ Chinni Babu against Anil Kumar Kashyap and others relating to Crime No. 822 of 2002, the prayer for summoning of the documents of Crime No. 822A of 2002 was rejected by the trial Judge.

On such facts, I have heard Sri Viresh Mishra, learned Senior Counsel for the revisionist assisted by Rajesh Kumar Gupta and Sri D.S. Mishra as well as Sri Rajesh Kumar Srivastava, learned Counsel for the accused Manoj Kumar Agarwal @ Chinni Babu at a great length and have gone through the entire record of the three petitions.

Sri Viresh Mishra, learned Senior Counsel at the very out set contended that so far as Criminal Misc. Application No. 4133 of 2006 is concerned he does not press it and, therefore, the said application should be dismissed as not pressed. Sri D.S. Mishra and Sri Rajesh Kumar Srivastava also had no objection to it consequently, Criminal Misc. Application No. 4133 of 2006 is dismissed as not pressed.

Coming to the two Criminal Revision Nos. 3735 of 2005 and 3736 of 2005, it is contended by Sri Viresh Mishra, learned Senior Counsel that the summoning order of the accused Manoj Kumar Agarwal @ Chinni Babu passed by C.J.M., Bareilly on 15102003/17 102003 was absolutely justified and the lower Revisional Court, Additional Sessions Judge, Court No. 3, Bareilly, committed a manifest error of law in setting aside the summoning order passed by C.J.M., Bareilly. Learned Senior Counsel submitted that from the complaint, statements under Sections 200 and 202 Cr.P.C. and copy of the inquest report, postmortem report, injury report, prima facie offence of murder is disclosed against Manoj Kumar Agarwal @ Chinni Babu and, therefore, C.J.M., Bareilly had rightly summoned him for offence under Section 302 I.P.C., which order has been wrongly set aside by the lower Revisional Court vide his impugned order dated 2072004, which has been challenged in Criminal Revision No. 3735 of 2005. He further submitted that while summoning the accused/revisionist, the Chief Judicial Magistrate has specifically mentioned that because complaint has been filed in respect of the same offence in respect of which an investigation was already in progress, therefore, both the cases were clubbed together and are taken together. He further submitted that since in the police case diary, inquest report, postmortem report etc. were available, therefore, Chief Judicial Magistrate has committed no error in summoning the accused. He further contended that lower Revisional Court committed a manifest error of law in critically appreciating of the facts of the case the circumstances of incident and evidences in the case diary and in the complaint case to set aside the summoning order. He submitted that lower Revisional Court had no power to critically appreciate the materials in the statements under Sections 200 and 202 Cr.P.C. and in the case diary for recording a finding that no offence is made out. He submitted that at the stage of summoning under Section 204 Cr.P.C. only a prima facie case was to be looked into which was very much there before the Chief Judicial Magistrate and therefore, the lower Revisional Court went beyond his jurisdiction in passing the impugned order dated 2072004 setting aside the summoning order passed by C.J.M., Bareilly. He, therefore, contended that Criminal Revision No. 3735 of 2005 deserves to be allowed and the summoning order of the Chief Judicial Magistrate dated 1510 2003/17102003 deserves to be restored. Sri Viresh Mishra, learned Senior Counsel further contended that because complaint was filed in respect of that very offence regarding which final report was submitted by the police in relation to Crime No. 822A of 2002, therefore, the Magistrate was fully justified in saying that no order need to be passed on the final report as he had summoned the accused in the complaint case. He further contended that impugned order dated 2072004 setting aside the order of the Chief Judicial Magistrate rejecting the final report is also illegal and deserves to be set aside and, therefore, Criminal Revision No. 3736 of 2005 be also allowed.

Sri D.S. Mishra and Sri Rajesh Kumar Srivastava, learned Counsels for the respondent on the other hand contended that in the complaint case, complainant had not examined all his witnesses and the doctor etc. were not examined, therefore, the summoning order of the accused under Section 302 I.P.C., which offence was triable by Court of Sessions was not justified and, therefore, the summoning order as rightly set aside. They further argued that the whole proceeding was mala fide and just to save the culprits in Crime No. 822 of 2002 that the complaint was filed by the revisionist/applicant. They further submitted that the impugned order dated 2072004 passed by Additional Sessions Judge, Court No. 3, Bareilly is fully justified and, therefore, it should be upheld. They further contended that the complaint was filed on the basis of concealment of facts and since the proviso to Section 202 (2) Cr.P.C. was not observed by the Chief Judicial Magistrate, therefore, the summoning order was rightly set aside. They further submitted that the revolver of the accused was got tallied with the bullet found from the body of the deceased and the report of Forensic Science Laboratory, Lucknow clearly indicates that the bullet did not tallied with the weapon. Learned Counsel, therefore, submitted that the whole prosecution of the accused is mala fide and deserves to be quashed. They concludingly stated that if the accused cannot be convicted then his summoning order should be set aside.

I have considered the submission raised by both the sides and have gone through the impugned summoning order dated 1510 2003/17102003 passed by Chief Judicial Magistrate, Bareilly as well as the impugned order dated 2072004 passed by Additional Sessions Judge, Court No. 3, Bareilly in the two Criminal Revision Nos. 423 of 2003 and 12 of 2004.

Some fact are not in dispute in this case. These facts are that the Manoj Kumar Agarwal @ Chinni Babu has fired from his revolver at the time of the incident which is more or less, the same in both the cases. The occurrence is said to have occurred on 2742002 at 8.45 p.m. The case of Manoj Kumar @ Chinni Babu was that the Anil and others tried to rob him and started firing and in retaliatory fire Anil Kumar Kashyap sustained injuries. In the other cross case No. 822A of 2002 Rajesh Kumar Gupta has anointed the role of shooting down his own brother Sarvesh Kumar to Manoj Kumar @ Chinni Babu. Thus the two crime numbers deal with two different sets of facts. The first Case Crime No. 822 of 2002 related with the robbery and causing of injuries to the prosecution side and the assailant whereas the other Case Crime No. 822A of 2002 related with the murder of the brother of the informant Sarvesh Kumar by the accused Manoj Kumar @ Chinni Babu. Since both the cases have got different sets of facts, they have tried to be tried separately on the evidence led in the each of the cases and then the guilt of the accused in those offences has to be judged. Since the facts of both the cases are different visavis, the informant and the accused persons as well, therefore, they cannot be tried and clubbed together. Further the offence in Crime No. 822 of 2002 is offence under Section 394 I.P.C. whereas Crime No. 822A of 2002 relate with an offence under Section 302 I.P.C. In such a view both the cases have to be tried separately.

I have gone through the impugned summoning order passed by C.J.M., Bareilly dated 15102003/17102003. Prima facie case was disclosed through the complaint and the statement and, therefore, Chief Judicial Magistrate, Bareilly was fully justified in summoning the accused Manoj Kumar @ Chinni Bahu for offence under Section 302 I.P.C. Since the final report was submitted by the police in respect of that very offence which was the subjectmatter of the complaint filed by the informant Rajesh Kumar Gupta, therefore, the C.J.M., Bareilly was fully justified in rejecting the final report and summoning the accused vide his order dated 15102003/17102003.

The lower Revisional Court/Additional Sessions Judge, Court No. 3, Bareilly conducted critical appreciation of the various facts of the offence to record the finding that no offence was made out and, therefore, summoning order is bad went beyond his jurisdiction in passing the impugned order. It is to be reminded that at the stage of Section 204 Cr.P.C. only a prima facie offence is to be seen. Critical appreciation of various facts of the case to fetch a defence for not prosecuting the accused at the stage of summoning is not required nor desirable. Code of Criminal Procedure provides various stages for considering the facts of the case to various extent. At the stage of Section 204 Cr.P.C. only a prima facie case is to be seen and no more. In the present case Additional Sessions Judge, Court No. 3, Bareilly wrongly exercised his jurisdiction in setting aside the impugned summoning order of the accused Manoj Kumar @ Chinni Babu inasmuch as the complaint and the statement coupled with postmortem report, inquest report etc. did disclose commission of cognizable offence against him under Section 302 I.P.C. In this view of the matter, the quashing of the summoning order of the accused Manoj Kumar @ Chinni Babu by Additional Sessions Judge, Court No. 3, Bareilly vide his impugned order dated 2072004 is wholly illegal and cannot be sustained and has to be set aside.

Coming to the contention of learned Counsel for the revisionist that provision to Section 202(2) Cr.P.C. was not observed by the C.J.M., I only need to say this much that while conducting an enquiry under Section 202 Cr.P.C. the C.J.M. was empowered to look into the material contained in the case diary and since the inquest, postmortem report etc. were part of the case diary, therefore, C.J.M., Bareilly considered those documents at a presummoning stage and had summoned the accused and there is no illegality in it. The scope of inquiry by the Magistrate under Section 202 Cr.P.C. cannot be circumscribed only to the extent of recording statements under that section. Inquiry under Section 202 Cr.P.C. has got a salutary purpose of finding out a prima facie case against the accused and, therefore, its scope cannot be restricted to recording of statements only. Magistrate, under that section can look into all the materials placed before him relating to the crime of inquiry and then pass an order. Law does not enjoins the Magistrate to conduct a limited inquiry.

Further the purposed of provision to Section 202 (2) Cr.P.C. directing the complainant to examine all his witnesses is for the purpose that the accused must know after he has been summoned as to on what basis and on what evidence he has been summoned and what are the allegations against him which he has to meet. Thus the proviso is for the purposes that the accused should not be taken by surprise in the trial. Analysing from such a view no prejudice is caused to the accused respondent in the present case and hence repel the objection of the respondent in respect of nonobservance of proviso to Section 202 (2) Cr.P.C. Rest of the objections raised by Counsels for the respondents are wholly unmerited and were harangued only to the rejected.

In view of the aforesaid Criminal Revision No. 3735 of 2005 deserves to be allowed and the impugned order dated 2072004 passed by Additional Sessions Judge, Court No. 3, Bareilly is set aside and the order of summoning dated 15102003/17102003 passed by C.J.M., Bareilly in Complaint Case No. 7996 of 2002, Rajesh Kumar Gupta v. Manoj Kumar Agarwal, is hereby restored.

Coming to Criminal Revision No. 3736 of 2005, it is to be noted that the complaint case and the final report related with the same offence. Before the final report was submitted, complaint case was already filed before C.J.M., Bareilly. Since both the cases related with the same offence and in the complaint case offence under Section 302 I.P.C. was clearly disclosed against the accused person, therefore, the Chief Judicial Magistrate, Bareilly was fully justified in rejecting the final report as he had to summoned the accused for offence under Section 302 I.P.C. In such a view the impugned order dated 207 2004 passed by Additional Sessions Judge, Court No. 3, Bareilly in Criminal Revision No. 12 of 2004 also cannot be sustained and, therefore, Criminal Revision No. 3736 of 2005, Rajesh Kumar Gupta v. State of U.P., also deserves to be allowed.

In view of the aforesaid Criminal Misc. Application No. 4133 of 2006 is dismissed as withdrawn. Both Criminal Revision No. 3735 of 2005 and Criminal Revision No. 3736 of 2005 filed by Rajesh Kumar Gupta are hereby allowed. The impugned orders passed by the lower Revisional Court in both the revisions of even dated 207 2004 are hereby set aside. The summoning order of the accused dated 15102003/17102003 passed by C.J.M., Bareilly is hereby restored.

The interim order dated 2642006 directing the trial Judge not to pronounced the judgment in S.T. No. 1100 of 2002, State v. Anil Kumar Kashyap and Ors., pending before the Additional Sessions Judge, Court 3, Bareilly is vacated.

Revision allowed.