Vijay Shankar Singh and Others vs State of U.P. and Another

R.D. Khare, J.—Heard learned Counsel for the applicants, Sri Satya Prakash Srivastava, learned Counsel appearing for the opposite party No. 2 and learned A.G.A. for the State Respondent.

The present Section 482, Cr. P.C. application has been filed for quashing the order dated 9.1.2009, passed by Chief Judicial Magistrate, Allahabad in Case No. 73 of 2009 (Case Crime No. 198 of 2004), P. S. Kaundhiara district Allahabad, whereby final report has been rejected and applicants have been summoned to face trial u/s 302, I.P.C.

Learned Counsel for the applicants has submitted that the applicant No. 1 had lodged a first information report on 9.8.2004 u/s 304B, I.P.C., pertaining to the dowry death of his daughter, Mamta, copy of which has been filed as Annexure-1 to the affidavit. It is further submitted that as the news of murder of Mamta spread, Krishna Pratap Singh, husband of Mamta, committed suicide on 2.8.2004. Taking advantage of the situation, opposite party No. 2, lodged a first information report against the applicants u/s 306, I.P.C. after 18 days of the alleged incident, to put pressure upon the applicants not to depose against opposite party No. 2 and his family members in the proceedings u/s 304B, I.P.C. A copy of the said first information report has been annexed as Annexure-5 to the affidavit. The post-mortem of Krishna Pratap Singh was conducted by Dr. A. K. Tripathi, who, in his post-mortem report, had reported that the cause of death was asphyxia as result of strangulation and that the hyoid bone was fractured, a copy of which has been filed as Annexure-3 to the affidavit. It is further contended that the statement of Dr. A. K. Tripathi, u/s 161, Cr. P.C. was also recorded in which he had stated that the death of Krishna Pratap Singh was due to strangulation. The police, after investigation, submitted final report on 16.9.2004, against which opposite party No. 2 filed a protest petition before the concerned Magistrate. The Magistrate directed the police for further investigation. It is also contended that officer incharge of the police station concerned, referred the matter for second medical opinion to the department of Forensic Medicine, Moti Lal Nehru Medical College, Allahabad, copy of which has been filed as Annexure-9 to the application. Thereafter, Professor U. S. Sinha of Moti Lal Nehru Medical College, Allahabad, submitted his opinion/ report on 20.8.2007, copy of which has been filed as Annexure-10 to the affidavit and he was of the opinion that the death of Krishna Pratap Singh was due to hanging. It is further contended that thereafter police again submitted final report on 10.10.2007, against which opposite party No. 2 again filed a protest petition. The Magistrate, vide its order dated 7.3.2008 directed the case to be registered as a complain case. Aggrieved by the aforesaid order of Magistrate the opposite party No. 2 filed Criminal Revision No. 248 of 2008 in the Court of Additional District and Sessions Judge, Court No. 8, Allahabad, who, vide its order dated 19.9.2008, quashed the order of Magistrate dated 7.3.2008 and directed the Magistrate to pass a fresh order after hearing the counsel for the revisionist, in accordance with law, copy of the said order dated 19.9.2008 has been filed as Annexure-12 to the affidavit. Pursuant to the order of revisional court dated 19.9.2008, Chief Judicial Magistrate, Allahabad passed a fresh order rejecting the final report and summoning the applicants to face trial u/s 302, I.P.C., which is impugned in the present application.

Perused the material on record as well as the order impugned.

The record shows that there are two contradictory medical reports pertaining to cause of death of Krishna Pratap Singh by two doctors and as per Modi''s Medical Jurisprudence and Toxicology, hyoid bone fracture is often found in strangulation.

Reference may be drawn to the difference between hanging and strangulation, as given in the Modi''s Medical Jurisprudence and Toxicology, which is as follows:

--------------------------------------------------------- Hanging Strangulation ---------------------------------------------------------- Fracture of larynx and Fracture of larynx and trachea--rare and that too trachea--often found in judicial hanging also hyoid bone -----------------------------------------------------------

This Court cannot delve into the question to fact which is to be considered and decided by the trial court, after considering the entire facts and evidence on record. The legitimate prosecution cannot be held up only on the ground that the opposite party No. 2 had lodged a first information report u/s 306, I.P.C. The Court has the power to examine the facts and evidence on record and thereafter summon the person accused, under the relevant section/sections of Indian Penal Code. This view has also been taken by the Hon''ble Apex Court in its judgment in Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. (2007) 12 SCC 1: 2008 (1) ACR 586 (SC), wherein Hon''ble Apex Court has held that power u/s 482, Cr. P.C. should no be exercised to stifle a legitimate prosecution and the Court should refrain from giving a prima facie decision in a case where entire facts are not complete and hazy.

Considering the aforesaid facts, this Court is of the opinion that the court below has rightly summoned the applicants to face trial u/s 302, I.P.C., which order suffers from no infirmity in law which may warrant any interference by this Court in exercise of powers u/s 482, Cr. P.C.

The applicants have their right to defend themselves in the trial by adducing evidence and at this stage, they suffer from no adversity by passing of the order impugned. The Hon''ble Supreme Court in its judgment in Som Mittal v. Government of Karnataka (62) 2008 ACC 980, has held that inherent power u/s 482, Cr. P.C. should be exercised sparingly, with circumspection, in the rarest of rare cases.

The prayer for quashing the summoning order is hereby refused.

Accordingly, the application is dismissed.