IMPORTANT POINT
Power under Section 482 CrPC should not be exercised to stifle a legitimate prosecution.

JUDGMENT

R.D. Khare, J.—Heard learned counsel for the applicants, Mr. Satya Prakash Srivastava, learned counsel appearing for the opposite party No. 2 and learned A.G.A. for the State respondent.

2. The present 482, Cr.P.C. application has been filed for quashing the order dated 9.1.2009 passed by Chief Judicial Magistrate, Allahabad in case No. 73 of 2009 (Case Crime No.198 of 2004), P.S. Kaundhiara, District Allahabad, whereby final report has been rejected and applicants have been summoned to face trial under Section 302, IPC.

3. Learned counsel for the applicants has submitted that the applicant No.1 had lodged a first information report on 9.8.2004 under Section 304B, IPC, pertaining to the dowry death of his daughter, Mamta, copy of which has been filed as Annexure 1 to the affidavit. It is further submitted that as the news of murder of Mamta spread, Krishna Pratap Singh, husband of Mamta, committed suicide on 2.8.2004. Taking advantage of the situation, opposite party No.2, lodged a first information report against the applicants under Section 306, IPC, after 18 days of the alleged incident, to put pressure upon the applicants not to depose against opposite party No. 2 and his family members in the proceedings under Section 304B, IPC. A copy of the said first information report has been annexed as Annexure 5 to the affidavit. The post-mortem of Krishna Pratap Singh was conducted by Dr. A.K. Tripathi, who, in his post-mortem report, had reported that the cause of death was asphyxia as result of strangulation and that the hyoid bone was fractured, a copy of which has been filed as Annexure 3 to the affidavit. It is further contended that the statement of Dr. A.K. Tripathi, under Section 161, Cr.P.C. was also recorded in which he had stated that the death of Krishna Pratap Singh was due to strangulation. The police, after investigation, submitted final report on 16.9.2004, against which opposite party No. 2 filed a protest petition before the concerned Magistrate. The Magistrate directed the police for further investigation. It is also contended that officer-in-charge of the police station concerned, referred the matter for second medical opinion to the department of Forensic Medicine, Moti Lal Nehru Medical College, Allahabad, copy of which has been filed as Annexure 9 to the application. Thereafter, Professor U.S. Sinha of Moti Lal Nehru Medical College, Allahabad, submitted his opinion/report on 20.8.2007, copy of which has been filed as Annexure 10 to the affidavit and he was of the opinion that the death of Krishna Pratap Singh was due to hanging. It is further contended that thereafter police again submitted final report on 10.10.2007, against which opposite party No. 2 again filed a protest petition. The Magistrate vide its order dated 7.3.2008 directed the case to be registered as a complaint case. Aggrieved by the aforesaid order of Magistrate the opposite party No. 2 filed criminal revision No. 248 of 2008 in the Court of Additional District and Sessions Judge, Court No. 8, Allahabad, who, vide its order dated 19.9.2008, quashed the order of Magistrate dated 7.3.2008 and directed the Magistrate to pass a fresh order after hearing the counsel for the revisionist, in accordance with law, copy of the said order dated 19.9.2008 has been filed as Annexure 12 to the affidavit. Pursuant to the order of revisional Court dated 19.9.2008, Chief Judicial Magistrate, Allahabad passed a fresh order rejecting the final report and summoning the applicants to face trial under Section 302, IPC, which is impugned in the present application.

4. Perused the material on record as well as the order impugned.

The record shows that there are two contradictory medical reports pertaining to cause of death of Krishna Pratap Singh by two doctors and as per Modi’s Medical Jurisprudence and Toxicology, hyoid bone fracture is often in strangulation.

Reference may be drawn to the difference between hanging and strangulation, as given in the Mo