Vishweshwar Dayal Pathak vs State of U.P. and Others

Barkat Ali Zaidi, J.—A case (Crime No. 1056C of 2006) was registered on the order of the Chief Judicial Magistrate, Farrukhabad u/s 156(3), Cr. P.C. on the allegation of one Respondent Bhagwati Prasad Mishra that his daughter Upasana has been killed by her husband Bunty and his parents Vishambhar Dayal and Smt. Rajni.

The accused-Petitioners filed a Revision (No. 170 of 2006) before the Sessions Judge and mentioned in the revision application that the lady who is said to have been killed , is alive and is living with her paramour Mahesh son of Shiv Raj Singh in Village Achalpur within the jurisdiction of Police Station Bahjoi, district Moradabad and he also gave the address.

The Additional Sessions Judge, (Court No. 3, Farrukhabad) in his order dated 25.9.2006 while deciding the revision application, declined to intercede with the cryptic observation that the revisionists should themselves produce the lady, before the Court. That is how this petition under Article 226 of the Constitution of India.

I have heard Sri K. P. Shukla, learned Counsel for the Petitioner and Sri R. D. Yadav, Additional Government advocate for the State.

As far as the order of the Sessions Judge, dismissing the revision for registering a case u/s 156(3), Cr. P.C. is concerned, the Petitioners have no case, and the Magistrate was not unjustified in ordering of registering a case when such serious allegations were made.

Objectionable part of the order of the Sessions Judge consists in his refusal to direct the police, to recover the girl from the given address and to ask the revisionists to produce the lady. The Sessions Judge should have realized that the Petitioners could not bring forcibly the lady, Upasna and it is only the police, who could, recover the girl.

In a case of alleged murder when some body says that the person said to be killed is alive, the police should naturally find out with the help of person concerned whether it is actually so! The police and the learned Sessions Judge both failed in their duty in verifying the statement of the accused about the girl Upasana being alive.

The police should have gone to the spot alongwith the accused to see if the girl is alive. That was necessary to secure the ends of justice.

We, therefore, issue direction that the police shall go to the given address alongwith the applicant and see if the girl is alive and produce her before the Magistrate.

With these directions this petition is disposed of finally.

A copy of this order be sent by the Registry to the Chief Judicial Magistrate, through District Judge, and Senior Superintendent of Police, Farrukhabad for information and compliance.