The Allahabad High Court has set aside the summoning orders issued in violation of the rules.

A Single Bench of Justice Nand Prabha Shukla passed this order while hearing an application filed by Shishupal Singh and 4 Others.

The application under Section 482 Cr.P.C has been filed to quash the order dated 25.01.2023 as well as the summoning order dated 26.05.2023 passed by the Chief Judicial Magistrate, Kanpur Dehat in Complaint Case under Sections 147, 308, 323, 504, 506 IPC, Police Station Gajner, District Kanpur Dehat as well as the entire proceedings of the aforesaid complaint case pending in the Court of Chief Judicial Magistrate, Kanpur Dehat against the applicants.

Counsel for the applicants submitted that the opposite party no 2 Smt Manju Shukla moved an application dated 25.03.2022 under Section 156 (3) Cr.P.C on the basis of which a First Information Report dated 02.04.2022 was registered as Case under Sections 147, 308, 323, 504 IPC, Police Station Gajner, District Kanpur Dehat alleging that on 15.03.2022 her two sons Gopal Shukla and Ram Shukla were going to their fields on a motorcycle and were ambushed by the applicants near the house of village Pradhan Rekha Singh (wife of applicant no1 Shishupal Singh).

Shishupal Singh hit an axe on the head of Gopal Shukla and Ram Shukla was assaulted with sticks. Upon hearing about the incident, her other two sons Govind Shukla and Chhotu Shukla went to rescue the injured and found them lying unconscious. At the place of occurrence, a Milk Dairy was situated owned by Bhanu Pratap Singh, whose employee, namely, Shubham Shukla fired with a country made pistol of 315 bore causing injury to Akanshu.

On 15.03.2022, Gopal Shukla was medically examined at District Hospital, Kanpur Dehat.

After the registration of the FIR, the investigation was conducted and the Closure Report/Final Report dated 26.04.2022 under Section 173(2) Cr.P.C was prepared and submitted before the concerned Court. Against the said Closure Report/Final Report the opposite party no 2 moved a protest petition which was treated as a complaint case vide order dated 25.01.2023 passed by Judicial Magistrate, Kanpur Dehat and after examining upon oath the complainant and the witnesses under Sections 200 and 202 Cr.P.C, the Chief Judicial Magistrate, Kanpur Dehat by order dated 26.05.2023 summoned the accused/ applicants to face trial.

It was thus submitted that as no such incident took place as alleged, therefore after conclusion of investigation, a Final Report/Closure Report dated 26.04.2022 was submitted. But the Trial Court without application of mind had rejected the Final Report/Closure Report. The Protest Petition moved by the opposite party no 2 was treated as a complaint case and the accused/applicants have been summoned to face trial without any reasoned and speaking order and, therefore, it is liable to be set-side. The Trial Court recorded a wrong finding which was not based on the material recorded under Sections 200 and 202 Cr.P.C, therefore, the findings recorded by the Trial Court was perverse and was liable to be set-aside.

Per contra, A.G.A as well as counsel for the opposite party no 2 vehemently opposed the above submissions of the counsel for the applicants and submitted that there is no illegality or perversity in the order impugned. The Trial Court on the basis of the material under Sections 200 and 202 Cr.P.C has rightly summoned the applicants to face trial.

The Court observed that,

Having heard counsel for the parties and upon perusal of the record it transpires that the Trial Court has not applied its judicial mind while passing the impugned summoning order. The impugned order contains the substance of the examination of the complainant Smt Manju Shukla on oath recorded under section 200 Cr.P.C, who is not an eyewitness of the incident. There is no whisper of statement on oath of Gopal Shukla and Ramji Shukla, two injured examinees on oath who were the material witnesses. There is no description about the nature of injuries inflicted to the injured Gopal though from the perusal of the records, it transpires that it was simple in nature caused by a hard and blunt object. The alleged injured witness Ramji Shukla was not even medically examined. There are certain other noticeable discrepancies.

“It appears that as an afterthought, the application under Section 156 (3) Cr.P.C has been moved after a delay of about 10 days on the basis of false and fabricated injury report to mount pressure and to settle the score in the cross case, i.e, Case under Sections 34, 307, 323, 504 IPC, P.S Gajner, District Kanpur Dehat, which was registered prior in point of time. The said injuries can be fabricated. After the investigation, the Police advertised the filing of Closure Report/Final Report.

However, the Trial Court without application of mind rejected the said Final Report and on the basis of the protest petition of opposite party No 2 summoned the applicants to face trial in a cursory manner by taking cognizance obviously under section 190(1)(a) of the Cr.P.C and proceeded against the applicants by issuing process under Sections 147, 308, 323, 504 and 506 IPC. Therefore, the summoning order is bad in the eyes of law.

The Court is of the considered opinion that the mandate of provisions of Sections 200 and 202 Cr.P.C has been clearly violated. The Trial Court should have carefully scrutinized the complete material to find out the truthfulness of allegations and the basis of prima facie satisfaction before summoning the applicants at the time of recording of preliminary evidence. Thus, the orders dated 25.01.2023 and 26.05.2023 are not tenable”, the Court further observed while allowing the application.

The Court set aside the order dated 25.01.2023 passed by Judicial Magistrate, Kanpur Dehat and the summoning order dated 26.05.2023 passed by the Chief Judicial Magistrate, Kanpur Dehat in Complaint Case under Sections 147, 308, 323, 504, 506 IPC, Police Station Gajner, District Kanpur Dehat.

The Allahabad High Court while allowing an application observed that an order issuing a summons to an accused for an offense under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can be challenged by filing an application under Section 482 CrPC.

A Single Bench of Justice Rahul Chaturvedi passed this order while hearing an application under section 482 filed by Devendra Yadav and 7 Others.

The question of sustainability of the 482 Cr.P.C application against the order of summoning under Sections 147, 148, 323, 354 Kha, 452, 504 IPC and Section 3(1)(X) SC/ST Act, P.S Bilhaur, District Kanpur Nagar pending in the court of Additional District & Sessions Judge/Special Judge, SC/ ST Act, Kanpur Dehat and impugned summoning order dated 19.11.2022 passed by the same court.

The extraordinary powers of the Court has been invoked by the applicants challenging the entire proceeding of the under the aforesaid sections of the IPC pending in the court of Additional District & Sessions Judge /Special Judge, SC/ST Act, Kanpur Dehat including the summoning order dated 19.11.2022.

As the matter relates to the “maintainability of the 482 Cr.P.C application” in the light of the full Bench decision of the Court in the case of Gulam Rasool Khan and others Vs State of U.P and others in Criminal Appeal decided on 28.07.2022, , whereby Single Judge vide order dated 03.08.2018 has referred the matter to the larger bench and has framed the following question, which are quoted herein below:-

(i) Whether a Single Judge of this Court while deciding Criminal Appeal (Defective) No. 523/2017 In re : Rohit Vs State of U.P and another vide judgment dated 29.08.2017 correctly permitted the conversion of appeal under Section 14 A of the Act, 1989 into a bail application by exercising the inherent powers under Section 482 of the Cr.P.C?

(ii) Whether keeping in view the judgment of Rohit (supra), an aggrieved person will have two remedies available of preferring an appeal under the provisions of Section 14 A of the Act, 1989 as well as a bail application under the provisions of Section 439 of the Cr.P.C?

(iii) Whether an aggrieved person who has not availed of the remedy of an appeal under the provisions of Section 14 A of Act, 1989 can be allowed to approach the High Court by preferring an application under the provisions of Section 482 of the Cr.P.C?

(iv) What would be the remedy available to an aggrieved person who has failed to avail the remedy of appeal under the provision of Act, 1989 and the time period for availing the said remedy has also lapsed?

AGA has strenuously hammered his submissions that 482 Cr.P.C application is not maintainable in the light of the aforementioned observations made by the full Bench of the Court in the case of Gulam Rasool Khan (supra).

Mohit Singh, counsel for the applicants refuted the submissions by making a mention that there are catena of decisions of the Apex Court with regard to the maintainability of the 482 Cr.P.C application, even though the provisions of SC/ST Act is present.

Since the case of Gulam Rasool Khan was decided in the year 28.07.2022 whereas Ramawtar case was decided in 2021, thus, it has been contended by the counsel that 482 Cr.P.C application is maintainable even if it relates to SC/ST Act.

Counsel for the applicant submitted that while deciding the case of Gulam Rasool Khan (supra), the Division Bench of the Court has never relied upon or even considered the ratio laid down in the judgment of Ram Avtar Vs State of M.P and thus could be safely be termed as per incuriam.

Thus from the aforesaid discussions, it is clear that the Apex Court has clearly and time and again have opined that elaborating the aforesaid provision of full bench of the Court as well as the Apex Court and taking the help of the aforesaid judgments, the Court is of the considered opinion that 482 Cr.P.C application could be filed assailing the summoning order, the Court said.

The Court noted that,

The application under Section 156(3) Cr.P.C converted into a complaint case order dated 08.05.2019 passed by Additional District & Sessions Judge/Special Judge, SC/ST Act, Kanpur Dehat.

The Special Judge, SC/ST Act vide summoning order dated 19.11.2022 has summoned the applicants, namely, Devendra Yadav, Babulal Yadav, Laloo Yadav, Lakhan Raidas, Naresh, Amar Singh, Sonu and Arvind under Sections 147, 148, 323, 354 Kha, 452 and 504 IPC and Sections 3(1)(X) SC/ST Act to face the prosecution.

The genesis of the case starts from filing of the 156(3) Cr.P.C application by opposite party no 2 on 27.09.2018 for the incident said to have taken place on 05.04.2018.

Counsel for the applicant have accused the Trial Judge that he has passed the impugned summoning order with pre-meditated mind on 19.11.2022. The Court has occasioned to to peruse the summoning order in which Special Judge, SC/ST Act have narrated the statements and have jumped into the conclusion that prima facie case is made out against the applicant under Section 147, 148, 323, 354 Kha, 452, 504 IPC and Section 3(1)(X) SC/ST Act.

In addition to this, it is argued by the counsel that the court below has passed an impugned order dated 08.05.2021 observing therein that the police have submitted a report that there is no FIR registered at the police station. The aforesaid observation is nothing but a tissue of utter falsehood for the reasons best known to the concerned Special Judge. The aforesaid police report as mentioned in earlier paragraphs, which clearly indicates that there is a FIR lodged by Smt Gangajali wife of Rajaram as case under Sections 147, 452, 504, 380 IPC.

In this case, opposite party no 2 Geeta also sustained injuries but she was adamant to get the criminal case registered under the SC/ST Act, she is playing all the tricks and gimmicks with the court process and the Special Judge, SC/ST Act is supporting her calls and therefore, the proceeding would safely be termed as second complaint on the same facts, though its complainant is a different lady.

“In the case, where the contesting parties are residents of Kanpur Nagar. The Court wonders as to what circumstances, Special Judge, SC/ST Act, Kanpur Dehat has passed the impugned summoning order without holding the requisite mandatory inquiry as contemplated in Section 202(1) Cr.P.C and therefore, the impugned summoning order is well short of aforesaid legal issues, which cannot be sustained in the eye of law.

Thus taking into account the totality of the circumstances and the observation made by the Apex Court in this regard, I have got no hesitation to quash the impugned summoning order dated 19.11.2022 passed by the Additional District & Sessions Judge/ Special Judge, SC/ST Act, Kanpur Dehat. Since parallel proceeding by way of FIR is already progressing and the present controversy is nothing but an arm twisting of the applicants by levelling more serious and grim allegations in it and therefore, it cannot be sustained”, the Court observed while allowing the application.

The Allahabad High Court has upheld the life sentence awarded to a murder convict by the District and Sessions Judge, Kanpur Dehat in 1996.

The Division Bench of Justice Sunita Agarwal and Justice Om Prakash Tripathi passed this order while hearing a Criminal Appeal filed by Chhunna.

The appellant has preferred the criminal appeal aggrieved by the orders dated 12.03.1996 and 13.03.1996, passed by the District and Sessions Judge, Kanpur Dehat in Sessions Trial “State vs Chhunna and others” Police Station Sheorajpur, District Kanpur Dehat, convicting and sentencing the appellant to undergo life imprisonment under Section 302 of IPC with a fine of Rs 3,000, in default thereof, to undergo one year rigorous additional imprisonment.

The prosecution case is as follows:

Subhash Chandra Mishra, the complainant, s/o late Sunderlal Mishra, r/o Village Dubiana, P.S Sheorajpur, District Kanpur Dehat lodged the first information report on 23.03.1995 alleging that the deceased Sunder Lal r/o village Dubiana, Police Station Sheorajpur, District Kanpur Dehat, had his flour mill towards east of his house at a distance of about 1-1/2 furlong near GT Road.

On 22.03.1995 at about 8:00 PM, Sunder Lal died, his son Subhash Chandra and Rakesh were busy grinding flour. One Amit, a resident of village Baharampur, came to the said flour mill for grinding his wheat. Accused Chhunna and Dinesh, who were relatives of Amit, were also with him. The accused wanted to get their wheat grinded first, breaking the line of other customers, Subhash Chandra and his brother Rakesh asked them to get the wheat grinded on their turn. On that occasion, accused Chhunna and Dinesh threatened them. Thereafter, Amit went to his house after getting his wheat ground.

On the night of 22.03.1995, Sunder Lal, the deceased, was sleeping inside the premises of a flour mill on a Takhat. His son Rakesh and Suresh Kumar, brother-in-law of Subhash Chandra, were sleeping on another charpai near the deceased. A lighted lantern was hanging inside the premises. At about 11:45 PM Sunder Lal died. Hearing his cries, Rakesh and Suresh Kumar woke up and observed that Chhunna was inflicting knife blows on the deceased. On the challenge given by Rakesh and Suresh, Chhunna fled away. Both Rakesh and Suresh chased Chhunna and observed that accused Dinesh was standing on the gate of the flour mill. Both accused fled away in the dark. Hearing the alarm, the other persons of the village also came to the spot.

Sunder Lal had fallen down on the ground and had profuse bleeding from the injuries he sustained. Injured were taken to the P.H.C Sheorajpur at about 3:00 AM. He was attended there by the pharmacist as the doctor was not present. After providing first aid, he was referred to L.L.R Hospital, Kanpur City. But before being shifted to L.L.R Hospital, the deceased succumbed to his injuries at 5:10 AM.

On 24.03.1995, the Investigating Officer interrogated Rakesh and Suresh Pandey. He apprehended accused Chhunna and Dinesh. On the pointing of Chhunna accused, I.O recovered a blood-stained knife, the weapon of assault, sealed it and prepared a recovery memo.

The cognizance of the offence had been taken by the Chief Judicial Magistrate, Kanpur Dehat, who committed the case to the Court of Sessions for trial on 5.7.1995.

Accused Chhunna was charged with the offence punishable under Section 302 IPC while accused Dinesh was charged with the offence punishable under Section 302/34 IPC. The accused pleaded not guilty and contended that they being workers of Bahujan Samaj Party were falsely implicated on account of enmity and Party-Bandi.

The Court noted that,

According to the prosecution, Sunder Lal died on account of knife injuries. The accused have not disputed identity, death and cause of the death of deceased Sunder Lal.

As far as the FIR of this case is concerned, the occurrence took place on the night of 22.03.1995 at about 11:45 PM inside the flour mill premises of the deceased, situated in Village Dubiana, Police Station Sheorajpur, District Kanpur Dehat. Thereafter the deceased was taken to the P.H.C by Khatola (small cot) at about 3:00 AM. Doctor was not present therefore, the Pharmacist had attended the patient and after primary treatment, referred the injured to L.L.R Hospital, Kanpur City.

But before being shifted to L.L.R Hospital, the deceased Sunder Lal expired at 5:10 AM and thereafter complainant prepared a written report and on the basis of written report, FIR against the accused was lodged at about 6:50 a.m on 23.03.1995, i.e, after one hour and 40 minutes after death. It is also proved that due to serious injuries, the complainant was busy in treatment to save the life of his father, after death, information was given to the police station. FIR of the case has been lodged promptly without unnecessary delay and without any legal consultation.

So far as the motive of the incident is concerned, counsel for the appellant submitted that the appellant has weak motive to cause the incident. The appellant has been falsely implicated in the case, being a member of BSP.

It is a case of eye-witness account of those who had seen the occurrence and in case of eye-witness, direct evidence, motive becomes immaterial, the Court said.

On the basis of above discussion, the Court cleared that the prosecution has successfully proved the manner of occurrence that accused Chhunna was the real assailant who inflicted the fatal blow on scrotum, inguinal region of the deceased. The nature of ante-mortem injuries of the deceased were such that it could cause his death in all probabilities. This shows that accused Chhunna had every intention and knowledge that injury caused by him would result in the death of the deceased. Therefore, the prosecution has successfully proved the guilt of accused Chhunna for the offence punishable under Section 302 IPC. It is a murder made with cool mind in a planned way four hours after altercation on the same day. It is not a case of grave and sudden provocation.

Co-accused Dinesh was not found guilty by the trial Court and was acquitted for the charge under Section 302/34 IPC. The State of Uttar Pradesh had not filed any appeal against the acquittal of co-accused Dinesh and no such appeal has been brought before us, the Court further said.

On the basis of above discussion, the Court of the view that the orders of the trial court dated 12.03.1996 and 13.03.1996 passed by the District and Sessions Judge, Kanpur Dehat in Sessions Trial “State vs. Chhunna and others”, Police Station Sheorajpur, District Kanpur Dehat, convicting and sentencing the accused appellant Chhunna to undergo life imprisonment under Section 302 IPC with fine of Rs.3,000, in default thereof, to undergo one year rigorous additional imprisonment, is hereby confirmed. During trial, the accused appellant Chhunna was on bail.

During appeal, the appellant Chhunna was on bail. The appellant was arrested on 21.01.2020 in execution of the non-bailable-warrant and is detained in the District Jail, Mati, Kanpur Dehat at present.

“The accused appellant Chhunna is directed to serve out the remaining period of his sentence. The bail bonds filed by the appellant are forfeited and sureties are discharged,” the Court directed while dismissing the appeal.

The Allahabad High Court on Friday has given the district magistrate of Kanpur Dehat, Jitendra Pratap Singh, a week’s time to comply with the court’s order and in the event of non-compliance, the former district magistrate, Dinesh Chandra, will appear on March 25. A single bench of Justice V.K. Birla passed this order while hearing a contempt application filed by Archana Mishra.

The standing counsel for the opposite party states that a fax was sent to Dinesh Chandra, the then district magistrate on February 27, 2021. He, however, points out that Dinesh Chandra, the then District Magistrate (opposite party no. 1) was transferred and new incumbent Jitendra Pratap Singh joined on March 4, 2021 as district magistrate, Kanpur Dehat.

The counsel for the applicant is permitted to implead new incumbent Jitendra Pratap Singh, district magistrate, Kanpur Dehat as respondent. It has been stated that after the transfer of the earlier district magistrate, was also given a representation dated September 5, 2020, however, the claim of the petitioner was not decided.

The court is of the view that it is very much clear that even the order of the court dated February 17, 2021 was made known to Dinesh Chandra, the then district magistrate but the same was not complied with by him till the date of his transfer.

Standing counsel submits that a week’s time may be granted to the new incumbent respondent to ensure compliance with the writ court.

Admittedly, this is second contempt and neither the order of the writ court has been complied with nor the district magistrate Dinesh Chandra, is present in the court. Once the order of the court has been communicated to him and it has not been complied with by him, he cannot take shelter behind the transfer order and remain absent.

“Put up this case on March 25, 2021 as fresh before the appropriate bench, on which date in case order of the writ court is not complied with, district magistrate Dinesh Chandra and newly impleaded Jitendra Pratap Singh both shall remain present in court,” the court said.

It is directed that apart from Dinesh Chandra, standing counsel shall represent the newly impleaded respondent on the next date fixed as well.

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