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2007 Supreme(All) 2963
ALLAHABAD HIGH COURT
R.K.Rastogi
NIHAL SINGH
Versus
STATE O
Decided On : 07 December 2007
Criminal Misc. Application No. 13267 of 2006
The main legal point established in the judgment is that the Magistrate cannot record statements of witnesses under section 164 Cr. P. C. without a request from the investigating agency, and must follow proper procedures after rejecting the final report.
Headnote:
section 482 Cr. P. C. - Quashing of order - sections 304, 394, 504, 506 I. P. C. - P. S. Jafarganj District Fatehpur
Fact of the Case:
The case involved the quashing of an order passed by the C. J. M. Fatehpur in a case involving sections 304, 394, 504, 506 I. P. C. related to an incident at P. S. Jafarganj District Fatehpur. The facts included arrests, recovery of illegal substances, and allegations of police misconduct.
Finding of the Court:
The court found that the summoning order passed by the C. J. M. Fatehpur was based on illegally recorded statements of witnesses under section 164 Cr. P. C. The court allowed the application under section 482 Cr. P. C., quashed the summoning order, and remanded the matter for rehearing in accordance with the law.
Issues: The issues involved the legality of the summoning order based on statements of witnesses recorded under section 164 Cr. P. C. without the request of the investigating agency, and the proper procedures to be followed by the Magistrate after rejecting the final report.
Ratio Decidendi: The court held that the Magistrate acted without jurisdiction in recording statements of witnesses under section 164 Cr. P. C. without a request from the investigating agency. The proper procedure after rejecting the final report was to refer the matter for further investigation or treat the protest petition as a complaint and take action accordingly.
Final Decision: The court allowed the application under section 482 Cr. P. C., quashed the summoning order, and remanded the matter for rehearing in accordance with the law.
This is an application under section 482 Cr. P. C. for quashing the order dated 18. 9. 2006 passed by the C. J. M. Fatehpur in Case Crime No. 4862 of 2004 (State v. Nihal Singh and others) under sections 304, 394, 504, 506 I. P. C. , P. S. Jafarganj District Fatehpur.
2. The facts relevant for disposal of this application are that on 2. 6. 2004 at about 8. 15 P. M. an F. I. R. was registered at police station Jafarganj District Fatehpur as Case Crime No. 26 of 2004 under sections 21/22 N. D. P. S. Act on the basis of recovery memo prepared by Sri Nihal Singh, then S. O. of Police Station Jafarganj who is applicant No. 1 in the present case. It has been stated therein that on the aforesaid date at 3. 35 P. M. the aforesaid S. O. Nihal Singh along with other members of police party named, Shiv Nath Sonkar, Lalman and Udaiveer Singh, (the applicants No. 2 to 4 in the present case) and Phool Chandra and Kashi Singh proceeded on the Government Jeep from the police station to Garhi Tiraha and there they received information that at village Barwa, Bhaiyadeen and his wife were running business of sale of smack. Then he called S. I. Sri Amrish Kaushik, constable Jagat Lal (applicant No. 6 in the present case) and lady constables Usha Devi and Radha Devi and all of them reached the house of Bhaiyadeen. They saw a lady selling smack to customers. On seeing the police party she tried to go inside the house but with the help of lady con stables, the police arrested her at about 5:45 P. M. and she told her name as Chandrakali wife of Bhaiya Deen. She was given option of being searched before a Gazetted Officer/magistrate but she stated that she was ready for being searched before the police party and then aforesaid both the lady constables took her search and then in a polythene bag 1. 5 grams of open smack powder and four small packets and one big packet containing smack were recovered from her possession. Recovery memo of smack was prepared and the smack was sealed. The information of arrest was given to her daughter-in-law Smt. Veermati wife of Pradeep.
3. On the same date another F. I. R. was also lodged by Sri Nihal Singh then S. O. of police station Jafarganj at 8. 15 P. M. in which it was stated that after the arrest of Smt. Chandiakali when the police party started towards the police station, her sons named Pradeep alias Phoolchand, Dileep alias Chinku and Raju, Bhaiyadeen and their companions Ajeet Singh and Rakesh Kumar Tiwari with an intent to rescue Smt. Chandiakali attacked the police party having Barachhi, axe lathi and danda in their hands and one of them fired at the police party. However no fire arm injury was received by any one of them. The police party arrested Ajeet Singh and Rakesh Kumar Tiwari. . The remaining assailants namely Bhaiya Deen and his sons Pradeep alias Phoolchandra, Dileep alias Chinkoo and Raju ran away from the spot. Upon search of the arrested persons one country made pistol of 12 bore was recovered from possession of Ajeet Singh and there was one empty cartridge of 12 bore in the barrel of the pistol with smell of gun powder due to fresh shot. Another person told his name as Rakesh Kumar Tiwari and one country made pistol and two live cartridges of 12 bore were recovered from his possession. On the basis of this report, case Crime No. 27 of 2004 was registered under sections 147, 148, 149, 352, 353, 504, 307, 225, 511 I. P. C. against the above named accused persons and Case Crime No. 28/2004 and 29/2004 under section 25 Arms Act were also registered against Ajeet Yadav and Rakesh Tiwari respectively.
4. On 4. 6. 2004 at 5. 15 P. M. an F. I. R. was registered under order of the S. P. Fatehpur on the application of Bhaiyadeen dated 3. 6. 2004 in which it was alleged that Bhaiyadeen was resident of village Barwa, P. S. Jafarganj District Fatehpur and he belonged to scheduled caste. He was a poor person. On 2. 6. 2004 at about 9 A. M. Nihal Singh, S. O. along with the police party came
