Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Quashing Of Murder Case/evidence Disclosed/Writ Petition Dismissed.
JUDGEMENT TITLE : Mahadeo Prashad Vs. State Of U.P. & Another. On 09/13/2010 By Allahabad High Court
CORAM : Hon'ble Vinod Prasad,J.


Criminal Misc.Writ Petition No. 7139 Of 2010
Mahadeo Prashad..................Vs.................State Of U.P. And Another.

Hon. Vinod Prasad, J
This Writ Petition Has Been Placed Before Me After Nomination From Hon'ble The Chief Justice.
Mahadeo Prasad, Petitioner Has Invoked Extra Ordinary Jurisdiction Of This Court, Under Article 226/227 Of The Constitution Of India, With The Prayer To Quash The Orders Dated 26.3.2010, Passed By Special Judge SC/ST Act, Jalaun At Orai, In Criminal Revision No. 96/09, Tahar Singh And Another Versus State Of U.P. And Another And Order Dated 24.4.2009, Passed By Chief Judicial Magistrate, Jalaun At Orai, In Criminal Case No. 511/06, Bahadur Singh Vs. Tahar Singh And Others, U/s 302 And 328 IPC, P.S. Rampura, District Jalaun At Orai. By The Impugned Order Dated 24.4.2009, CJM, Jalaun At Orai Has Summoned The Applicants To Stand Trial For The Aforesaid Offences, In The Aforesaid Criminal Case. The Impugned Orders Dated 26.3.2010 And 24.4.2009 Are Annexure Nos 1 And 2 Respectively, To This Writ Petition.
Back Ground Facts In Thumb Nail Description Of This Case Are That On The Intervening Night Between 16/17 January 2006, Informant Bahadur Singh Parihar, Brother Of Deceased Vishal Singh Lodged An Intimation At P.S. Rampura, District Jalaun At Orai, Mentioning Therein That Both The Informant And Deceased Were Resident Of Village Umari, P.S. Rampura, District Jalaun. On The Intervening Night Between 16/17 January 2006, At 11 A.M., Co-villager Tahar Singh, Along With 2 Or 3 Other Persons, Brought His Brother Vishal Singh At His House And Intimated That He Was Lying In Drunkard Condition Out Side The Village And They Had Carried Him To His House. Informant Found His Brother Dead. Leaving Dead Body Of His Brother At His House, Informant Got FIR Scribed From Man Singh Sengar R/o Village Litawali And Lodged It At P.S. Rampura At 1.35 P. M. On 17.1.2006.FIR Of The Informant Bahadur Singh Parihar Was Registered In GD No. 15 On 17.1.2006.
Inquest On The Dead Body Vide Annexure No. 4 Was Conducted At 2.38 P. M. And Was Concluded At 4 P. M. By Sub Inspector. Autopsy On The Dead Body Of The Deceased Was Conducted On 18.1.2006 At 3 P. M. By Dr. L.R. Ahirwar, Vide Annexure No. 5. No Ante-mortem Injury Was Detected On All Over The Body But Viscera In Two Jars Was Preserved By The Doctor. According To The Doctor Deceased Was Aged About 45 Years And Was Having An Average Built Body.
On The Basis Of The Report Since Police Did Not Act Bahadur Singh Approached The Power Of Magistrate U/s 156 (3) Cr. P.C., By Filing An Application On 27.3.2006, With The Prayer That Police Station Rampura Be Directed To Register The FIR And Investigate. Along With The Application U/s 156 (3) Cr. P.C., Affidavits Of Bahadur Singh And Chintai Were Annexed Vide Annexure Nos. 7 And 8 To This Application. Vide Order Dated 29.5.2006, Annexure No. 10, To This Application, Judicial Magistrate/ Civil Judge (Junior Division), Orai, Directed The FIR To Be Registered And Investigation To Be Carried Out. In Pursuance Of The Order, Passed By Magistrate, FIR Of Crime No. 318/06, U/s 328 IPC Was Registered On 13.12.2006 At 1.30 A.m. At P.S. Rampura, District Jalaun, Vide Annexure No. 11 To This Application. Police, During The Course Of Investigation Had Interrogated The Doctor, Who Had Conducted The Post Mortem On The Body Of The Deceased. After Conducting Usual Investigation, I.O. Submitted Final Report Vide Annexure No. 13 On 18.1.2007 Vide F.R. No. 2/07. It Is Mentioned Here That In Application U/s 156 (3) Cr. P.C., Four Persons, Who Were Alleged To Be The Culprits Were Tahar Singh, Ram Sundar, Brijendra Alias Karia And Mahadeo. After Receiving Final Report, A Protest Petition Annexure 14 Was Filed By Bahadur Singh Against Acceptance Of F.R. Vide Annexure 15, CJM, Jalaun At Orai, In Concerned Misc. Case NO. 153/01, Accepted The F.R. On 31.8.2007 And Rejected The Protest Petition. Aggrieved By The Said Order Dated 31.8.2007, Bahadur Singh Preferred Criminal Revision No. 222/07 Before Sessions Judge, Jalaun At Orai, Which Was Heard And Allowed By Order Dated 24.1.2008, By Additional Sessions Judge/ F.T.C, Jalaun At Orai, Who Remanded The Matter Back, To The Magistrate.
After Receiving Back The Case, Magistrate Registered The Protest Petition As Complaint Case And Recorded The Statement Of Complainant Bahadur Singh, U/s 200 Cr. P.C. And That Of The Witnesses Chintai (P.W. 1), Har Narain Singh (P.W. 2), Jagram (P. W. 3) And Ultimately On The Basis Of Evidence, So Tendered, Summoned The Applicant And Other Accused Persons Vide Summoning Order Dated 24.4.2009, Annexure No. 2 In The Concerned Complaint Case No. 511/06, For The Offences U/s 302/328 IPC, Fixing 18.5.2009, For Appearance.
Aggrieved By The Summoning Order Dated 24.4.2009, Applicant And Co-accused Tahar Singh Preferred Criminal Revision No. 26/09 Before Sessions Judge, Jalaun At Orai, Which Criminal Revision Was Heard And Rejected By Special Judge, SC/ST Act, Jalaun At Orai On 26.3.2010. Hence, This Writ Petition By The Petitioners Challenging Both The Orders Dated 24.4.2009 By Which CJM, Jalaun At Orai Had Summoned Them U/s 302/328 IPC And Order Dated 26.3.2010, By Which The Lower Revisional Court Had Dismissed Their Revision.
What Is Important To Note At This Juncture Is That Co-accused Tahar Singh, Who Was Summoned Along With The Petitioner Had Preferred Criminal Miscellaneous Application No.13459 Of 2010 Before This Court, Which Came Up Before Me 19.5.2010. In The Aforesaid Criminal Miscellaneous Application Tahar Singh Has Challenged Summoning Order Dated 24.4.2009 Passed By C.J.M., Jalaun At Orai. At The Time Of Admission Itself, Finding That Criminal Miscellaneous Application Is Meritless And Summoning Order Passed On Cogent Reasons, Aforesaid Criminal Miscellaneous Application Under Section 482 Cr.P.C. Was Dismissed By This Bench.
Since The Writ Petition Was Filed Subsequently, At The Time Of Admission, It Was Informed That Writ Petition Of Co-accused Was Dismissed By This Bench That The Present Writ Petition Was Nominated By Hon'ble The Chief Justice To This Bench To Be Decided.
I Have Heard Sri Sukhendu Pal Singh, Learned Counsel For The Petitioner In Support Of This Writ Petition And Learned AGA In Opposition.
Learned Counsel For The Petitioner Raised Many Contentions. He First Submitted That After Final Report Was Submitted, Informant Bahadur Singh Had Not Made Accused Persons A Party In Criminal Revision No.222 Of 2007 By Which He Had Challenged Acceptance Of Final Report And Therefore, Impugned Order Passed By Lower Revisional Court Dated 26.3.2010 Is Not In Consonance With Law. It Was Next Contended That While Considering Protest Petition C.J.M. Has Considered Affidavits Of Bahadur Singh And Chintai, Which Were Extraneous Material And Therefore, Summoning Order Dated 24.4.2009 Is Also Erroneous. Another Contention Is That There Were Contradictions And Developments In The F.I.R. Lodged By Bahadur Singh And His Application Under Section 156(3) Cr.P.C. And Statement Under Section 200 Cr.P.C. Are Malafidy And Consequently He Is A Unreliable Witness, Therefore, Prosecution Of The Applicant Be Quashed. Next It Was Submitted That There Was An Acute Animosity Between The Culprits Inter Se And Consequently There Was No Reason For Them To Join Hands Together To Commit A Murder Without Any Motive. Further Criticism By Learned Counsel For The Petitioner Was That The Conduct Of Bahadur Singh Was Highly Unnatural And Therefore, The Same Should Not Be Relied Upon. Another Contention Was That Ethyl Alcohol, Which Was Found In The Viscera Report, As Poison, Is Neither A Poison Nor Can Cause Death And Therefore, The Petitioner Has Not Committed Any Offence. It Was Additionally Submitted That There Is No Eye-witness Account Of Vishal Singh Deceased Being Administered Poisonous Liquor And Therefore, Prosecution Of The Petitioner Suffers From Patent Error Of Law. It Was Further Contended That Petitioner Has Been Summoned On Suspicion, Which Is Neither Grave Nor Is Based On Incriminating Material And Therefore, Should Not Be Countenanced And Petitioner Should Not Be Harassed By Going Through The Rigmarole Of The Criminal Trial. It Was Further Submitted That Initially Four Persons Were Named But Subsequently Only Two Persons Were Named And Rest Of The Two Persons Were Exonerated By Describing Them As Unknown Persons And Hence, The Entire Prosecution Story Is Frivolous. It Was Next Contended That Complainant Had Not Examined All The Witnesses, As Was Required Under Section 202 Second Proviso Of The Code And Therefore, Also Summoning Order Of The Applicant Is Bad In Law. Much Emphasis Was Laid By Learned Counsel For The Petitioner On Various Litigations Civil As Well As Criminal In Between The Parties And Accused Inter Se To Cement The Submission That Entire Prosecution Of The Petitioner Is Bad In Law, Illegal, Vexatious And Therefore, Be Quashed.
Learned AGA, Per Contra, Contented That There Is Sufficient Material For Prosecution To Summon The Applicant And Summoning Order Of The Petitioner Has Already Been Upheld By This Court And There Is Evidence Of Extra Judicial Confession As Well, Therefore, The Writ Petition Is Bereft Of Merits And Be Dismissed.
I Have Considered The Rival Contentions And Have Looked Into The Record And The Various Rulings Cited At The Bar By Learned Counsel For The Petitioner.
The Facts Which Are Not In Dispute Are That Informant Bahadur Singh Was The Brother Of The Deceased Vishal Singh, Who Died Because Of Ethyl Alcohol, As Is Clear From Annexure No.5, Which Is A Viscera Report. Death Of Vishal Singh, Therefore Was Unnatural Death. According To The Version By Informant Brother Bahadur Singh, It Was The Petitioner Mahadeo Prasad, Who In Company Of Other Culprits Had Brought The Corpse Of The Deceased At His House And Had Informed Informant That He Was Lying Outside Village Premises In A Drunkard Condition. Thus, It Is Perceptibly Clear That Deceased Was In The Accompany Of The Petitioner And Other Accused Persons On The Last Occasion. As Is Mentioned In Annexure No.3, Which Is The First Intimation To The Police By Informant, The Deceased Was Brought At His House When He Was Already Dead. Application Under Section 156(3) Cr.P.C. Moved By Bahadur Singh Complainant Mentions Many Motives For Committing Murder Of The Deceased. It Also Contains That The Accused Persons When Found Themselves In Trouble Had Confessed Their Guilt As Well Before Gaya Singh And Shishu Bhan Singh And Had Confessed Administering Poison In The Liquor. There Is Evidence Of Last Seen By P.W.1 Chintai And In His Presence Petitioner Along With Other Socio-criminises Had Taken The Deceased Along With Him On 16.1.2006 At 6.30 P.m. P.W.2 And Other Witnesses Have Supported The Case Of The Complainant.
In Such A View, It Cannot Be Said That There Was No Material Before The Concerned Magistrate To Summon The Accused Persons To Stand Trial For Committing The Murder. The Submission By Learned Counsel For The Petitioner Is That It Is A Case Of No Eye-witness Account Does Not Make Any Difference At All For The Reason That The Circumstances Prima Facie Indicates That The Deceased Was In The Company Of The Accused Persons And Lost His Life Because Of Unnatural Circumstances By Administering Poison. It Is For The Accused To Explain During Trial Who Administered The Poison To Deceased And How He Met His Death. Under Article 226 Of The Constitution Of India, Prosecution Of Case Should Not Be Quashed When Prima Facie There Is Sufficient Evidence To Indicate Commission Of Offence. This Aspect Of The Matter No Longer Remains Res-integra And Has Been Decided By The Apex Court Time And Again. The Categories Mentioned By The Apex Court In A Case Of State Of Haryana Versus Bhajan Lal, 1992 SCC (Cr) 426, Does Not Imbibe The Case Of The Petitioner. It Is Trite Law That If Offences Are Disclosed, Prosecution Cannot Be Quashed. Contention Of Learned Counsel For The Petitioner That There Is No Credible Evidence Prima Facie To Prosecute The Petitioner Is Not Borne Out From The Record And Is Therefore, Repelled.
There Is Another Aspect Of The Matter That Summoning Order Of The Petitioner Along With Co-accused Dated 24.4.2009 Has Already Been Upheld By This Bench In 482 Cr.P.C. Application No.13459 Of 2010, Which Order Has Not Been Set Aside As Yet. Once The Summoning Order Of The Petitioner Along With Co-accused Has Been Upheld By This Bench, This Bench Cannot Take A Contrary View As The Order Passed By This Bench In Earlier 482 Cr.P.C. Application Has Got A Binding Effect. Prosecution Of An Accused Can Be Quashed Only In Rarest Of Rare Circumstances By Exercise Of Power With Utmost Circumscription Ex-debitto Justice.
In The Present Case Justice Requires A Proper Trial To Bring The Culprits To Books Specially When The Case At Hands Is One Where The Minimum Punishment Is Life Imprisonment.
Learned Counsel For The Petitioner Though Has Filed Many Decisions But Has Referred To Only One Of Them Harishchandra Prasad Mani & Ors. Vs. State Of Jhankhand & Anr.: AIR 2007 (SC) Page 1117.
I Have Gone Through The Aforesaid Judgement. That Was A Case, Which Was On Different Facts And Circumstances Altogether. In That Case Father-in-law Had Launched Prosecution Against Daughter-in-law After The Dead Body Was Cremated Etc. The Cause Of Death Of The Deceased Was Natural, As The Autopsy Doctor Had Found That The Deceased Had Died Due To Cardio Respirator Arrest (heart Attack). That Is Not The Situation Hear In The Present Case Where Admittedly Deceased Was Poisoned To Death.
Much Emphasis Was Laid By Learned Counsel For The Petitioner On The Submission That The Deceased Has Died Due To Ethyl Alcohol Poison. It Is Submitted That Ethyl Alcohol Is Not A Poison At All And Therefore, Cannot Cause Death. This Aspect Of The Matter Has To Be Looked Into By The Trial Court And Not By This This Court On Affidavit Under Article 226 Of The Constitution Of India.
There Is No Merit In This Writ Petition, Which Stands Dismissed. There Shall Be No Order As To Cost.

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