Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 933

IN THE HIGH COURT OF ALLAHABAD
SHAMIM AHMED, J.
Vivek Singh @ Monu and Another – Appellants
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 2705 of 2019
Decided On : 31-05-2024

Advocates:
Advocate Appeared:
For the Appellants : Ishan Baghel, Mohd. Khalid.

IMPORTANT POINT
The court reaffirmed that charges under Section 304 IPC require clear evidence of intent or knowledge to cause death, and that judicial scrutiny is essential before summoning accused in criminal proceedings.

Headnote:
QUASHING - CRIMINAL PROCEDURE - Section 482 Cr.P.C., Section 304 IPC, Section 3 of Prevention of Damage to Public Property Act - The court discussed the application of Section 482 of the Cr.P.C. which allows for quashing of proceedings to prevent abuse of the process of law. It emphasized that for a charge under Section 304 IPC, there must be evidence of intention or knowledge to cause death, which was absent in this case. The court also highlighted the lack of proper judicial scrutiny by the Chief Judicial Magistrate in issuing summons and the mechanical nature of the proceedings, leading to the conclusion that the applicants were wrongfully implicated.
Fact of the Case:
The applicants, Vivek Singh and Mohd. Danish, sought to quash the summoning and cognizance orders related to a case where an FIR was lodged against Prabhat Agarwal and others for the alleged culpable homicide of Harinand Jaiswal due to a tree falling during the demolition of a wall. The applicants were not named in the FIR and were implicated later through a statement by the deceased's daughter, raising concerns about the credibility of the charges.
Finding of the Court:
The court found that the summoning orders lacked a legal and factual foundation. It noted that the primary eyewitness did not name the applicants, and the circumstances suggested that the incident was accidental rather than intentional. The court criticized the Chief Judicial Magistrate for failing to apply judicial mind and for not properly examining the evidence before issuing summons.
Issues: Whether the applicants could be held liable under Section 304 IPC for culpable homicide and whether the summoning orders were justified based on the evidence presented.
Ratio Decidendi: The court established that for a charge of culpable homicide, there must be clear evidence of intention or knowledge to cause death, which was not present in this case. The court also emphasized the necessity for the magistrate to apply judicial scrutiny before issuing summons, as per established legal principles.
Final Decision: The court quashed the summoning and cognizance orders against the applicants, concluding that the evidence did not support any culpable homicide charges and that the incident was an accident.

JUDGMENT :

SHAMIM AHMED, J.

1. Heard Shri Ishan Baghel, learned Counsel for the applicants, Shri Ashok Kumar Singh, learned A.G.A-I for the State-opposite party No. 1.

2. As per the office report dated 12.01.2022 notice upon opposite party No. 2 has been served personally but till date neither any counter affidavit has been filed nor any counsel is present today to represent opposite party No. 2, the case was taken up in the revised call for final arguments.

3. The present application under Section 482 Cr.P.C. has been filed on behalf of the applicants, namely-Vivek Singh @ Monu and Mohd. Danish @ Mohd. Danish Azad seeking quashing of the impugned summoning and cognizance order dated 30.03.2016 and consequential orders dated 11.01.2018 and 11.07.2018 passed by learned Chief Judicial Magistrate, Lucknow and charge sheet dated 13.07.2015 and the entire proceeding in Criminal Case No. 16768 of 2016; State vs. Prabhat Agarwal & Others arising out of Case Crime No. 224 of 2014 under Section 304 I.P.C. and Section 3 of Prevention of Damage of Public Property Act pending before learned trial court.

4. Learned Counsel for the applicants submitted that in the present case an FIR dated 02.12.2014 was lodged by Constable Govind Narain, P.S. Naka Hindola, Lucknow against Prabhat Agawal and 5-6 unknown persons under section 304 IPC and 3 of Prevention of Damage to Public Property Act and in the FIR it has been alleged that on 02.12.2014 at around 02:00 PM, the complainant alongwith another constable were present on the place of occurrence wherein one Prabhat Agarwal alongwith 5 to 6 other persons were demolishing a boundary wall of the Old Employment Office, Charbagh. It is also alleged in the FIR that a peepal tree was standing on the foundation of the said boundary wall, which consequently fell over a passerby namely Harinand Jaiswal S/o Late Satya Narain, who alongwith his wife was passing from the place of occurrence, got injured and was taken to Balrampur Hospital, where he died.

5. Learned Counsel for the applicants further submitted that the postmortem of the deceased Harinand Jaiswal was done on 03.12.2014 at KGMU, Lucknow in which cause of death was shown due to ante-mortem head injury and apart from the deceased Harinand Jaiswal no other person including her wife who was going with him, has sustained any single injury due to the alleged incident as mentioned in the FIR.

6. Learned Counsel for the applicants further submitted that the applicants are not named in the FIR. However, in order to falsely implicate the applicants they were arrayed as an accused, upon the statement under Section 161 Cr.P.C. dated 23.01.2015 of the daughter of the deceased namely Renu Jaiswal but as per the FIR, only the wife of the deceased namely Rani Jaiswal was going alongwith her husband at the place of occurrence and therefore, she is said to be an eye-witness of the incident and the wife of the deceased in her statement under 161 Cr.P.C. dated 22.12.2014, did not mention names of the applicants as an accused. However, for the first time she mentioned the name of her daughter Renu Jaiswal stating that she was also going with them on the date of occurrence i.e. on 02.12.2014 only with the intention to give gravity to the offence and falsely implicate the applicants.

7. Learned Counsel for the applicants further submitted that as per the FIR Renu Jaiswal is not the eye-witness to the aforesaid incident and the statement of Renu Jaiswal being taken after one month of the alleged incident and that too after the statement of her mother shows that names of the applicants have been dragged into the case with an afterthought and in order to falsely implicate the applicants.

8. Learned Counsel for the applicants further submitted that the story set up by the police in the FIR cannot be believed inasmuch as it does not appeal to reason and when the police personnel saw some illegal activity i.e. demolition of the wall done by the accused, as is mentioned in the FIR, n