Court No. - 49

Case :- APPLICATION U/S 482 No. - 8621 of 1997

Applicant :- Smt. Hina And Another

Opposite Party :- State of U.P.

Counsel for Applicant :- Rakesh Chandra Upadhyay,Dileep

Kumar,G.S.Chaturvedi,Rajrshi Gupta,Swetashwa Agarwal

Counsel for Opposite Party :- R.P. Singh,A.G.A.,Murlidhar

Hon'ble Saumitra Dayal Singh,J.

1. List revised. Heard Shri Dileep Kumar, Senior Advocate, and

Shri Swetashwa Agarwal, learned counsel for the applicant and

Shri Ashish Mani Tripathi, learned AGA for the State. None

present for the informant.

2. Present application under section 482 Cr.P.C. seeks quashing

of the order dated 23.9.1996 passed by the Chief Judicial

Magistrate, Aligarh, taking cognizance and summoning the

applicants under Section 302 I.P.C., in Case No. 22/12/89 (State

Vs. Hina & Ors.), arising from Case Crime No. 442 of 1988.

Also, the applicants seek quashing of the order dated 11.7.1997

passed by the Chief Judicial Magistrate, Aligarh, rejecting the

review application filed by the applicants and the order dated

6.12.1997 passed by VIII Additional Sessions Judge, Aligarh,

rejecting the revision filed by the applicants, arising from the

orders dated 23.9.1996 and 11.7.1997. At the outset, it has been

submitted, during pendency of the present proceedings,

applicant no.2 - Wizarat Husain has died.

3. The case has a checkered history. The surviving applicant

no.1 is the wife of the deceased Urfi. The First Information

Report was lodged on 7.12.1988, by Siddique Husain (father of

the deceased), against the applicants and five others. It was

alleged, the deceased Urfi was burnt to death when he visited

the residence of the applicants, at Aligarh, on 04.12.1988. Upon

investigation, the police submitted a closure report. Against

that, a protest petition was filed by the first informant. It came

to be allowed by order dated 10.4.1991 and cognizance was

taken. The applicants filed revision against that order. It was

allowed, by order dated 27.7.1991 and the matter was remanded

to the learned Magistrate. Against that order, the first informant

filed a revision before this Court. It came to be allowed by

order dated 21.12.1994. This Court set aside that order and

remitted the matter to the learned Magistrate. In turn, the

learned Magistrate directed re-investigation in the matter. On

12.3.1996, a second final report was submitted by the police to

which, again, a protest petition was filed by the informant side.

4. Exercising his power under Section 190(1)(b) of The Code of

Criminal Procedure, 1973 (hereinafter referred to as 'the Code'),

the learned Magistrate took cognizance of the offence and

summoned the applicants, vide his order dated 23.9.1996. In

view of the then existing statutory provisions, the applicants

appear to have filed a review application before the learned

Magistrate, which was rejected by order dated 11.7.1997. The

further revision filed before the learned VIII Additional

Sessions Judge, Aligarh, was also rejected by order dated

6.9.1997. Hence, this application.

5. Upon hearing the parties, initially, an interim order was

granted on 23.12.1997 whereby the proceedings in Case No.

22/12/98 (State Vs. Hina & Ors.) pending in the court of Chief

Judicial Magistrate, Aligarh, had been stayed. While that order

is stated to have been vacated by operation of law, the

proceedings are stated to be pending at that stage itself.

6. In short, it has been submitted by learned counsel for the

applicants - during the two investigations conducted by the

police, no material surfaced as may make out the ingredients of

the offence under Section 302 I.P.C. Thus, it has been

submitted, the material collected during investigation points in

one direction - the deceased suffered an accidental occurrence.

In that he suffered burn injuries upon petrol igniting as he lit his

cigarette. The statements of the witnesses recorded during

investigation and the dyi