High Court
Case Details
Court No. - 71 Case :- APPLICATION U/S 482 No. - 37331 of 2022 Applicant :- Virendra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ankit Agarval Counsel for Opposite Party :- G.A.,Garun Pal Singh Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Heard learned counsel for the applicant, learned counsel for the opposite party no. 2 and perused the record. By means of this application under Section 482 Cr.P.C. the applicants seek to invoke inherent jurisdiction of this Court to set aside the order dated 01.10.2022 passed by the Judicial Magistrate, Court No. 4, Mathura in Criminal Case No. 37637 of 2022 arising out of Case Crime No. 166 of 2022 under Sections 307, 323, 354 Kha, 504, 506 IPC, Police Station Naojhel, District Mathura. As per the facts of the case on the basis of application under Section 156 (3) Cr.P.C. an FIR was lodged on 23.04.2022 against four accused persons including the present applicant under Sections 307, 323, 354 Kha, 504, 506 IPC. After investigation, the Investigating Officer found the location of the accused persons at different places, far away from the place of occurrence, on the basis of call detail reports of the accused persons. On the basis of the call detail reports and evidence on record, the Investigating Officer filed final report against the accused persons. An application was moved against the opposite party no. 2 under Section 182 IPC to register a case for giving false information. On the basis of protest petition of the opposite party no. 2 the trial court passed the impugned order dated 01.10.2022 rejecting the final report no. 34 of 2022 dated 27.05.2022 and summoned all the four accused persons to face the trial under Sections 307, 323, 504, 506 IPC. While the present applicant was summoned under Sections 354 Kha IPC also in addition to above mentioned sections. It is submitted by the learned counsel for the applicant that admittedly the parties are remote relatives. They are neighbours and the natives of the same village. There is enmity among them with regard to partition of the property. In fact, in January, 2020 there was a fight between the parties regarding which cross cases were registered and in this connection the family of the opposite party no. 2 including the victim Krishna had to go to jail and due to this enmity Krishna used to give threat, as she had to undergo judicial custody, she would also make the accused persons to undergo such custody. The incident of the present FIR is said to be dated 02.04.2022 and it is the version of the opposite party no. 2 that when the FIR was not registered at the police station on 02.04.2022, on 03.04.2022 he sent a registered letter to the Superintendent of Police concerned. It is alleged by the learned counsel for the applicant that on the very next day i.e. on 04.04.2022 without waiting the result of this registered letter send to Superintendent of Police concerned, the application under Section 156 (3) Cr.P.C. was moved by the opposite party no. 2. It is further argued by learned counsel for the applicant that as the opposite party no.2 knew it very well that his information is false and the FIR would not be registered on his false allegation, so to give colour to his motive, he lodged an FIR through an application under Section 156 (3) Cr.P.C. The statements of the witnesses under Section 161 Cr.P.C. also did not confirm the incident. Even the Sub Inspector and Constable of the police in their statements have refused that the opposite party no. 2 ever came at the police station to lodge an FIR and they refused to lodge an FIR. It is further argued that the trial court on the basis of statements of the first informant and victim Krishna rejected the final report and summoned the present applicant to face the trial. Except the opposite party no. 2, and alleged victim Krishna, no other witness rather any independent witness has made a statement supporting the prosecution version. The statement of the victim under Sections 161 and 164 Cr.P.C. are contradictory. The prosecution is hereby malicious. Hence prayer is made to set aside the impugned order dated 01.10.2022. Learned counsel for the opposite party no. 2 opposed the prayer of the applicant and submitted that in the connected application U/S 482 Cr.P.C. No. 37054 of 2022, all the rest three accused persons have got relief of "no coercive action be taken against them" and the counter and rejoinder affidavits have been summoned by the court. It is further submitted that in the FIR and in the statements of the prosecution witnesses, there are specific allegations against the applicant and after considering those statements only, the court has passed the impugned order, which is very well within the mandate of law. From the perusal of the record, it is admitted fact that the parties are the remote relatives. They are neighbours and natives of the same village. It is also admitted that in the year 2020 a fight took place between the parties and cross cases were registered, where the prosecution persons including victim Krishna had to undergo judicial custody. Thus the enmity between the parties is admitted. Enmity is a double edged weapon which can lead the applicant to commit the offence and could also get him falsely implicated. If we go through the facts of the case, in the cross case between the parties, it was the opposite party no. 2 and his family members, who had to undergo judicial custody and not the present applicant or his family members, who had to undergo judicial custody. Learned counsel for the opposite party no. 2 could not place before the court the statement of any independent person, who had supported the prosecution version before the Investigating Officer. Pohpi s/o Babu, Babu Lal s/o Mohan Shyam, Niranjan s/o Vasudev, Chetram s/o Vasudev, Kanhaiya s/o Kanak Singh, Hari Singh s/o Sughar Singh, Ramesh Chandra s/o Hubb Lal, Vinod Kumar s/o Indrapal, Pawan Gupta s/o Ram Swarup Gupta, all the witnesses whose statements have been recorded by the investigating officer, none of them supported the prosecution version. All of them stated that because of enmity of Case Crime No. 5 of 2020 above, as a counterblast this case has been registered with false allegations. Not even the statement of single independent witness is on the record, which could support the version of the opposite party no. 2. No doubt, the first informant, and Smt. Krishna, who are said to be present at the time of incident, have made the statements supporting the FIR but all these persons, being party to the suit, are highly interested persons, otherwise also there are contradictions in the statement of the victim Krishna. In her statement under Section 161 Cr.P.C. she has stated that when they were coming back from the temple, their vehicle was stopped at Naujheel. The present applicant made fire at the opposite party no. 2 – Nitesh, which was missed and Virendra molested Smt. Krishna, while rest three accused persons thrashed them. Virendra tore her clothes and on her hue and cry some persons came and saved her. In her statement under Section 164 Cr.P.C. she has changed the place of incident, where in her statement under Section 161 Cr.p.C. the place of incident is town Naujheel itself and in her statement under Section 164 Cr.P.C. she has stated that incident took place in jungle. In the FIR and in her statement under Section 161 Cr.P.C. the allegation of molestation is only against the present applicant, while in her statement under Section 164 Cr.P.C. she has made a general allegation of molesting her against all the accused persons. Except Manoj, who was with them, no other villager has been mentioned as a witness and admittedly, no statement of any independent witness supporting the prosecution version is on record. As per FIR, all the three persons i.e. the opposite party no.2, victim Krishna and Manoj were thrashed with kicks and blows but no medical in this regard got done by these persons. Though, on 25.04.2022 victim Krishna was medically examined but nothing material was found in that medical. As per call detail report of the applicant his presence at the time of incident is found at Barsana, while as per call detail report of opposite party no. 2 his presence is found at City, Mathura at the time of incident. These are two different places, which are at least at a distance of more than one hour journey. So far as the allegation of making fire is concerned, if the fire was missed where did the fire hit, has not been disclosed nor any empty cartridge is said to have been collected from the spot. The enmity between the parties is admitted. It is also admitted fact that due to Case No. 5 of 2020 above prosecution side persons including victim Krishna had to undergo the judicial custody. The trial court has summoned the present applicant only on the basis of the statement of opposite party no. 2 and alleged victim Smt. Krishna, who are highly interested persons. The incident from the above discussion appears to be improbable and the conduct of the applicant, that he would molest her aunt/victim Smt. Krishna is against the natural human conduct. No attempt can be said to have made to get register an FIR and on the third day of incident application under Section 156(3) Cr.P.C. has been moved in the court. From the above discussion, the incident appears to be highly improbable, hence, the impugned order dated 01.10.2022 is liable to be quashed. The order dated 01.10.2022 above is hereby quashed and consequently the proceedings in Criminal Case No. 37637 of 2022 (Arising out of Case Crime No. 166 of 2022) under Sections 307, 323, 354 Kha, 504 and 506 IPC P.S. Naojhel, District Mathura against the applicant are also quashed. The application under Section 482 Cr.P.C. is hereby allowed. Order Date :- 16.1.2023 gp Digitally signed by :- GANESH PRAKASH High Court of Judicature at Allahabad