Court No. - 53 Case :- APPLICATION U/S 482 No. - 12642 of 2008 Petitioner :- Ramdei @ Asharfa Respondent :- State Of U.P. Petitioner Counsel :- Ravindra Nath Rai,Ashok Kumar Rai Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
Heard Mr. R.N. Rai for the applicant and the learned AGA for the respondent
and perused the record.
This is a petition under section 482 Cr.P.C. to quash the order dated 30.1.2008
passed by the Additional Sessions Judge, Court No.7, Basti in Criminal
Revision No. 1098 of 2007 whereby the learned Additional Sessions Judge
dismissed the revision filed by the applicant and maintained the order dated
17.9.2007 of the Chief Judicial Magistrate, Basti.
It appears that the case crime no. C-6 of 2003 under sections 307, 382, 379,
504, 506 and 427 IPC, P.S. Kakwari, District Basti was registered by the
police of P.S. Kalwari on the basis of an order passed by the concerned
Magistrate under section 156 (3) Cr.P.C. The police investigated the matter
and submitted a final report. A notice was issued to the applicant, who is the
complainant, on the final report. She filed a protest petition which was treated
as complaint and the learned Magistrate examined the applicant under section
200 Cr.P.C. and an inquiry under section 202 Cr.P.C. was also held. During
the inquiry, witnesses PW-1 Ran Vijay, PW-2 Rajendra Singh, PW-3
Shatrughan Singh, PW-4 Sukhram Singh, PW-5 Babu Ram Singh and PW-6
Arvind Kumar were examined. Certified copies of the injury reports relating
to injured Babu Ram, Ran Vijay and Asharfa Devi were also filed. A copy of
the statement of Ikbal recorded in the S.T. No. 116 of 2003 was also filed.
The learned Chief Judicial Magistrate on perusal of the materials, arrived at
the conclusion that there was no sufficient ground to proceed with the case,
therefore, he dismissed the complaint under section 203 Cr.P.C. The applicant
filed criminal revision no. 1098 of 2007 in the court of Sessions Judge, Basti
which was heard and dismissed by the Additional Sessions Judge, Court No.7
Basti on 30.1.2008.
The learned counsel for the applicant submitted that the learned Chief Judicial
Magistrate has passed the dismissal order only on two grounds, firstly, that
the applicant failed to examine all the witnesses as required by the proviso to
202 (2) Cr.P.C. and secondly the case had been concocted in order to create a
defence in the murder case being tried vide the ST No. 116 of 2003.
The learned counsel for the applicant further submitted that the learned Chief
Judicial Magistrate travelled beyond his jurisdiction in considering the facts
of the cross case and in evaluating the evidence as if he was recording a final
verdict after full trial. It was the duty of the Chief Judicial Magistrate to see
whether or not the materials brought on record during the enquiry under
section 202 Cr.P.C. were sufficient to summon the accused. If the materials so
placed on record had made out a case, the Chief Judicial Magistrate should
have summoned the accused instead of making evaluation of the evidence on
the basis of the facts of the cross case. It was next submitted that the
statements of the witnesses have been disbelieved on the ground that they
were interested persons and belong to one family. The witnesses ought not to
have been disbelieved only on the ground of enmity and also on the ground
that they belong to the family of the applicant. It was further submitted that if
there was any non compliance of the requirements of the proviso to section
202 (2) Cr.P.C., it was the duty of the Chief Judicial Magistrate to summon all
the witnesses and examine them instead of dismissing the complaint.
Moreover, the applicant had made an endorsement on the order sheet that she
did not want to examine any other witness, therefore, there was no non-
compliance of the aforesaid proviso. It was also submitted that the learned
Additional Sessions Judge has failed to consider the case in its correct
perspective and based his findings on altogether irrelevant grounds.
The learned AGA on the other hand submitted that the impugned orders have
been passed on the basis of the materials on record.
Admittedly, there was a cross case and was pending in the court of Sessions
as S.T. No. 116 of 2003. It is alleged that the complaint allegations were made
by way of a counter version of the aforesaid session trial. The statement of the
complainant as well as aforesaid witnesses were recorded in support of the
complaint, therefore, the complaint as well as the statement of the
complainant and witnesses ought not to have been discarded merely on the
basis of the facts either recorded in the case diary or in the aforesaid session
trial. It was the duty of the Chief Judicial Magistrate to see whether or not the
materials placed in support of the complaint were sufficient to proceed with
the case. While passing an order on a complaint after an enquiry under section
202 Cr.P.C. the Magistrate has to see the materials brought on record under
sections 200 and 202 CrPC and he was not justified in perusing the materials
of the cross case. If the other witnesses had not been examined by the
applicant and the learned Magistrate was of the view that the other witnesses
were to be examined he should have summoned them instead of dismissing
the complaint.
In criminal trials evidence of a witness cannot be discarded merely on the
ground that he is interested witness or has some enmity or belong to the
family of the injured. The evidence of the witness is to be seen in the light of
the facts and circumstances of the case and not on the basis of extraneous
materials. If the evidence of the witnesses is probable and consistent with the
facts and circumstances of the case and is also supported with the medical
evidence, the same cannot be discarded only on the ground that they belong to
one family and they have enmity with the accused.
In my opinion the parameters adopted by the learned Chief Judicial
Magistrate in discarding the applicant’s evidence and dismissing the
complaint was not based on any reasonable ground, therefore the impugned
orders cannot be sustained.
The petition is allowed. Impugned orders dated 17.9.2007 (Annexure-10) and
order dated 30.1.2008 (Annexure-11 ) are quashed. The learned Chief Judicial
Magistrate is directed to reconsider the matter in the light of the observations
made herein before and pass an appropriate order afresh in accordance with
law.
Order Date :- 4.8.2010
MTA