Ravindra Singh, J. - (1.) THIS appli cation has been moved by the applicants, Shekhar, Achhaibar and Manka with a prayer to quash the proceedings of com plaint case No. 3136 of 2001 (Nirmal v. Vindhyachal and others) under sections 147, 148, 149, 304 of I.P.C., Police Station Kotwali, District Deoria pending in the Court of learned Chief Judicial Magistrate, Deo ria.
(2.) THE facts in brief of this case are that the complaint dated 18.2.1984 has been filed by O.P. No. 2 in the Court of learned Chief Judicial Magistrate concerned, alleging therein that he was married with Smt. Sonia, from their wedlock, a male child namely Bacchan was born, who was aged about 2.0 years on the day of alleged inci dent dated 26.11.1982. THE complainant was ailing, due to which his wife started to lead an adulterous life and she performed her re-marriage with a person residing in village Arila where she remained for some period, thereafter, she again re-married with a person residing in village Amit- heen. THE accused Jamuna Tiwari is resi dent of village Amit-heen, he is having his relation with Vindhyachal Misra, residing in the same village of the complainant, all the accused persons were pressurising the first informant and his son Bacchan for keeping the wife at their house, for which the complainant and his son Bacchan were not agreed. THE wife of the complainant was kept at his house by the accused appli cant Achhaibar, due to this enmity, on 26.11.1982 at about 11.0 a.m., the applicants and other co-accused persons have beaten the deceased Bachhan by using lathi, kicks and fists blows, consequently, he became unconscious, when the complainant came to his house after pulling rickshaw, he provided medical aid to his injured son, on the next day of the alleged incident, the deceased Bachhan was brought to the dis trict hospital where he was admitted but unfortunately on 29.11.82 at about 2.00 p.m., he succumbed to his injuries whose post-mortem examination report was con ducted on 30.11.1982, its FIR was lodged but under the influence of the accused per sons, the I.O. submitted the final report. THEreafter, the complaint of the present case has been lodged by O.P. No. 2, the statement of O.P. No. 2 was recorded un der section 200 Cr.P.C. and the statement of PW 1 Sattraj, PW 2 Sanichari, PW 3 Harish, PW 4 Kaiphulwara were recorded under section 202 Cr.P.C., a copy of the post mortem examination was filed as documentary evidence, after considering the same, the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Deoria summoned the applicants on 5.4.1999 to face the trial for the offences punishable under sections 147, 149, 304 I.P.C. Being aggrieved from the order dated 5.4.1999, the present application has been filed by the applicants with a prayer to quash the proceedings against them pending in complaint Case No. 3136 of 2001. Heard Sri B.N. Singh, Sri Umesh Vats, learned Counsel for the applicants, learned A.G.A. for the State of U.P. and Sri Mohan Tiwari, learned Counsel appearing on behalf of Opposite Party No. 2. It is contended by the learned Counsel for the applicants that in the pres ent case, FIR has been lodged by O.P. No. 2, after investigation, the I.O. came to the conclusion that no offence has been com mitted by the applicants, therefore, the fi nal report has been submitted. The com plaint has been filed at a very belated stage. The complaint is based on false and frivo lous allegations. The allegation that the applicants and other co-accused persons caused injuries on the person of the deceased by using, lathis, kicks and fists blows is absolutely false and baseless, the same is not substantiated by the post mortem examination report because according to the post-mortem examination report, the cause of death was due to Teta nus and no ante-mortem injury was found on the body of the deceased, even no mark of any external injury was found on the body, the death of the deceased was not on account of any injury caused on his person but it was due to his illness but without considering all the facts and circumstances of the case, the learned Magistrate concerned has taken the cognizance and sum moned the applicants to face the trial which is illegal, therefore, the proceedings pend ing against the applicants may be quashed.
(3.) IN reply to the above contentions, it is submitted by the learned A.G.A. and learned Counsel for the O.P. No. 2 that in the present case, the FIR was lodged but under the influence of the applicants and co- accused persons, the I.O. submitted the final report without doing the proper in vestigation, the O.P. No. 2 lodged com plaint when he came to know that the I.O. has submitted the final report. Thereafter, the statements under sections 200 and 202 Cr.P.C. have been recorded. After considering the same, the learned Magistrate con cerned has taken the cognizance and sum moned the applicants to face the trial be cause on the basis of the allegations made against the applicants, prima facie, offence under sections 147, 149 and 304 I.P.C. is made out. There is no Illegality in the prosecution of the applicants, therefore, prayer for quashing the proceedings of the complaint case may be refused. Considering the submissions made by the learned Counsel for the appli cants, learned A.G.A., learned Counsel ap pearing on behalf of O.P. No. 2 and from the perusal of the record, it appears that in the present case, in respect of the same allegations, the FIR was lodged, after its in vestigation, the I.O. had filed the final report but in respect of subsequent orders on the final report, no document has been filed by any of the parties. It appears that after considering the complaint and statements recorded under section 200 and 202 Cr.P.C., which disclose the commission of offence, learned Magistrate concerned has summoned the applicants to face the trial punishable under sections 147, 149, 304 I.P.C. vide order dated 5.4.1999. The learned Magistrate concerned has not committed any procedural mistake in passing the order dated 5.4.1999. It also appears that till the summoning order dated 5.4.1999 no order has been passed on the final report because the learned Magis trate concerned has mentioned in the im pugned order that the final report has been misplaced with the connivance of the po lice officers. In such circumstances, the complainant, O.P. No. 2 was having no op tion except to lodge the complaint even if the final report was available, it is permis sible under the law, for which section 210 Cr.P.C. is attracted. The learned Magistrate concerned has not committed any error in taking the cognizance and summoning the applicants on the basis of the complainant filed by O.P. No. 2.;