HIGH COURT OF JUDICATURE AT ALLAHABAD
In a complaint triable by a Sessions Court, Magistrate must record statements of all witnessess u/s 202 Cr.p.C.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Criminal Misc. Application No. 12535 of 2007
Kailash Nath Pandey and another Vs. State of U.P. and another
This is an application under section 482 Cr.P.C. for quashing the summoning order dated 18.12.2006 passed by the III Addl. Civil Judge( Jr. Division)/Judicial Magistrate Ist Class , Mirzapur in Criminal Case No. 1141 of 2006, Ramesh Kumar Vs. Pankaj Kumar and others.
Heard the learned counsel for the applicants as well as the learned A.G.A. for the State.
Since the order passed by the learned Magistrate suffers from patent defects, I am passing final order in this case at the admission stage without notice to opposite party no.2.
The facts relevant for disposal of this application are that the complainant opposite party no.2 filed a complaint against the accused applicants in the court of Judicial Magistrate, Mirzapur under sections 323,504 and 506 I.P.C. and 3 (1)(10) of S.C./S.T, Act with these allegations that on 12.6.06 Ramesh Kumar Chamar came out of his house at village Bandhawa, P.S. Kachhawan District Mirzapur at about 5 P.M. to graze his cow . The accused Pankaj Kumar and Kailash Pandey met him in the way and said to him " Saley Chamar Ki Jati Tumhara Itna Man Barh Gaya Hai Ki Gay Ko Khet Men Chhor Kar Charatey Ho". When he asked them not to abuse him,the accused beat him with Lathis, Dandas, fists and legs and tied him with a tree and threatened to kill him. Upon noise Ram Lal and Babu Lal etc. reached there. They saw the incident and intervened. Then he went to police station Kachhawan and submitted his report but the S.I. Did not lodge his report and made a false promise that he would arrest the accused. On the next day the complainant went to the P.H.C. and got the injuries medically examined . Since the police did not take any action, he sent an application to the S.P. Mirzapur by registered post but even then no action was taken. The accused were threatening him every now and then saying that "Sala Chamar Kisi Din Ekant Men Mil Jay To Isko Maja Chakhatey". Then he lodged this complaint.
The learned Magistrate recorded the statement of complainant under section 200 Cr.P.C. and he also recorded the statements of Ram Lal and Babu Lal under section 202 Cr.P.c. . Thereafter he summoned the accused under section 323,504 and 506 I.P.C. and 3(1)(10) SC/ST Act vide order dated 18.12. 2006. Aggrieved with that order the accused applicants have filed this application under section 482 Cr.P.C.
Learned counsel for the applicants submitted before me that the offence under sections 3(1)(10) SC/ST Act is triable by Special Judge (SC/ST Act) and so the case is to be committed to the Court of Sessions by the Magistrate for trial . He submitted that since the case is triable by the court of Sessions , the Magistrate has to record statements of all the witnesses including formal witness like Doctor and other police witnesses etc. under section 202 Cr.P.C., but he did not do so in this case. The complainant had filed a copy of the injury report and he also stated that he had got X-ray of his injuries done on the advise of the Doctor but neither the Doctor, who medically examined the complainant, was examined under section 202 Cr.P.C., nor the X ray plate nor X- ray report was summoned nor the Doctor, who got the X ray done, was summoned. He further pointed out that in this case the complainant has claimed that he had sent report of the incident to the S.P. Mirzapur on 6.7.07 by registered post and in that report there are allegations regarding commission of the offence under sections 3(1)(10) of SC/ST Act which is a cognizable offence, and so it was essential for the Magistrate to have obtained report from the S.P. Mirzapur as to whether he had received application dated 6.7.06 from the complainant or not, and if he had received that application , what action was taken by him on that report , and whether the matter has been got investigated or not, taking into consideration the provisions of SC/ST Act, and the documents regarding action , if any, taken by the S.P. Mirzapur on that report should also have been summoned by the Magistrate, and after getting recorded statements of all the prosecution witnesses and obtaining report of the police on the aforesaid application of the complainant dated 6.7.06, he should have passed order in the matter. Since the learned Magistrate has failed to comply with the above requirements, the impugned order passed by him can not be upheld and the same is liable to be set aside.
The application under section 482 Cr.P.C. is therefore allowed.
The summoning order dated 18.12.2006 passed by the III Addl. Civil Judge( Jr. Division)/Judicial Magistrate Ist Class , Mirzapur in Criminal Case No. 1141 of 2006, Ramesh Kumar Vs. Pankaj Kumar and others is set aside and the case is remanded to the court below for further proceeding with the case in the light of observations made above in the body of the judgement, and then to pass an order in the matter in accordance with the provisions of law.