Salim Khan and another v State of Uttar Pradesh and others
Allahabad High Court
19 July 2013
Application No. 5570 of 2013
The Order of the Court was as follows :
1. This petition under section 482 Cr.P.C.has been filed on behalf of the applicants with the prayer to quash the entire proceedings of complaint case no. 1218 of 2011(Ranvir Singh & Others Vs. Salim Khan & Others) pending in the Court of learned C.J.M., Etah under sections 420, 467, 468, 471, 120-B, IPC, P.S. Kotwali Nagar, District Etah. It has further been prayed that the orders passed by the learned Magistrate on 21.11.2012 and 4.1.2013 be also quashed and set aside.
2. This case was listed on 9.5.2012. On that date learned counsel for the applicants and the learned AGA were present. Keeping in view the facts and circumstances of the case the Court was of the opinion that there was no point in issuing notices to opposite party nos. 2 to 6 because in the instant case a pure and simple issue of law is involved and facts are undisputed.
3. The factual matrix of the case is that on 9.7.2009 an FIR was lodged by Aram Singh Yadav, Senior Supply Inspector, Etah against the applicants which was registered under section 3/7 E.C.Act. The matter was investigated by S.I. Shree Niwas. He prepared a charge sheet and submitted it to the District Magistrate for sanction for prosecution of the applicants. It transpires that after obtaining legal opinion the District Magistrate was of the view that the matter should be re-investigated. The case was re-investigated by S.S.I. Jaswant Singh who was posted at police station Kotwali Dehat, Etah during the relevant period. The second investigating officer submitted a final report dated 2.4.2010 in the case It appears that the second investigating officer took into consideration certain affidavits said to have been filed on behalf of opposite party nos. 2 to 6 and placed his investigation on such affidavits. When submission of such affidavits came to the knowledge of opposite party nos. 2 to 6 they were astonished as they never submitted any affidavit in the case under section 3/7 E.C. Act, to the second investigating officer S.S.I. Jaswant Singh.
Therefore opposite party nos. 2 to 6 filed an application under section 156(3) Cr.P.C. against the applicants, S.S.I. Jaswant Singh, one Lekharaj and Naugunjan Gupta, Notary Public before whom the affidavits were allegedly sworn. Learned Magistrate allowed the application under section 156(3) Cr.P.C. and an FIR was lodged on 28.5.2011 at case crime No. 262 of 2011 under sections 420, 467, 468, 471, 120-B IPC at P.S.Kotwali, Etah. The investigation in the case started.
4. As per allegations, during the pendency of investigation of case crime no.262 of 2011 opposite party nos. 2 to 6 filed a complaint against all the five persons against whom they had lodged the FIR with the same allegations which were levelled in the FIR. The matter was inquired into by the Magistrate and vide his order dated 21.12.2011 the learned Magistrate summoned the applicants and one Lekhraj under various sections of Indian Penal Code. While passing the order the learned Magistrate stayed further proceedings of the complaint case under the provisions of section 210 Cr.P.C.as it was brought to his notice that investigation of case crime No.262 of 2011 was going on. From perusal of annexure 7 it appears that the investigating officer filed a final report on 13.9.2011. It is worth mentioning here that the date of final report is 13.9.2011 whereas the summoning order impugned herein is of 21.12.2011, a date subsequent to 13.9.2011. From perusal of page 33 of the paper book (its annexrue has not been marked) it appears that on 4.1.2013 a non-bailable warrant was issued by learned Magistrate against the accused persons who were summoned through his order dated 21.12.2011. Feeling aggrieved by the summoning order passed by the Magistrate and subsequent issuance of non-bailable warrant the present petition has been filed.
5. From perusal of the records it is evident that the FIR at case crime No.262 of 2011 was registered at P.S. Kotwali Nagar, Etah and the matter was investigated and a final report was submitted on 13.9.2011. The summoning order was passed by the learned Magistrate on 21.12.2011 which is a date subsequent to the date of filing of the final report. It appears that the learned Magistrate had no knowledge on 21.12.2010 of the fact that a final report in the matter had already been submitted on 13.9.2011 and therefore he decided to stay further proceedings in the case. Thus factually on 21.12.2011 no investigation was pending in respect of case crime No.262 of 2011 i.e. the case in respect of which the complaint was lodged by opposite party nos. 2 to 6 and which complaint was numbered as case crime No.1218 of 2011. In these circumstances I do not find that there is any illegality in the order passed by the learned Magistrate on 21.12.2011.
6. Further from perusal of the certified copy of the order sheet filed from the side of the applicants it appears that on 2.3.2012 an information was given to the Magistrate that a final report has been submitted in this case. After getting this report the Magistrate proceeded with the case and only thereafter he issued summons to the applicants and the third accused also to appear before his Court. From perusal of the order dated 21.12.2011 which is also impugned herein it is evident that the operative portion of this order is not happily worded. But from perusal of the order it is evident that no summons were directed to be issued by the learned Magistrate to procure the attendance of the applicants and the third accused. The summons were directed to be issued on 26.3.2012 as by that time the learned Magistrate had satisfied himself that a final report in case crime No. 262 of 2011 has been submitted.
7. In these circumstances on hyper-technicalities the judicial proceedings pending before the learned Magistrate cannot be quashed. Therefore, the prayer on behalf of the applicants to quash the entire proceeding and the summoning order is rejected. From perusal of the order sheets from 28.4.2012 to 6.8.2012 it does not appear that the applicants and the third accused were ever served with the summons issued by the Court of learned Magistrate. In the absence of such service there was no justification on the part of the Magistrate to issue a bailable or non-bailable against the applicants on behest of the complainant. Therefore the issuance of bailable as well as non-bailable warrant against the applicants as well as third accused of the case is quashed.
8. In the above circumstances the following directions in the case are given to the learned lower Court:-
1. Complaint case shall proceed.
2. The prayer to quash the complaint case and the proceedings is rejected.
3. Both the applicants namely Saleem Khan and Khacher Singh shall appear before the Court of learned C.J.M.,Etah on 2.9.2013. Till then no coercive order to procure their attendance shall be passed by the learned Magistrate. If the applicants do not appear before the Court of learned Magistrate on 02.9.2013 it shall be open to the Magistrate to issue coercive processes against them in accordance with law.
4. As regards he third accused namely Lekhraj fresh summon shall be issued and only thereafter warrant may be issued against him if the learned Magistrate is of the opinion for reasons to be recorded in writing, that the said accused is not attending the Court despite knowledge of the proceedings and date.
5. With the above observations the petition is finally disposed of.
Petition disposed of
