Surendra Singh - (1.) THE applicant by filing this application has sought to quash the impugned order dated 24.2.2009, passed by the Chief Judicial Magistrate, Kanpur Dehat in Criminal Case No. 7905 of 2002, Sita Ram v. Lalli, arising out of Case Crime No. 171 of 2001 of P. S. Derapur, district Kanpur Dehat directing the trial court to summon the accused persons and to proceed with the trial in accordance with law.
(2.) THE facts briefly stated leading to the present case are as follows : "THE complainant is alleged to have lodged the F.I.R. on 17.12.2001 at about 4.30 p.m. under Section 302, I.P.C. at P.S. Derapur, district Kanpur Dehat vide Crime No. 171 of 2001 with the allegation that on 12.12.2001 at about 9 p.m. his brother Raj Kumar was killed by one Lalli alias Anil in collusion of his associates by poisoning and mercilessly beating. THE version of the F.I.R. has been supported by the post-mortem report. THE Investigating Officer on conclusion of the investigation had submitted final report before the Court concerned and consequently thereupon the informant/applicant filed his protest petition on 29.3.2002. Learned Chief Judicial Magistrate vide his order dated 7.10.2002 after hearing the applicant and having perused the record of the case treated protest petition of the applicant to be a complaint and thereupon the statement of the complainant/ applicant under Section 200, Cr. P.C. was recorded on 11.6.2003 and thereafter the statements of the other witnesses, namely, Sri Kant (P.W. 1), Rajesh (P.W. 2), Shailendra Singh (P.W. 3) and Dr. R. N. Tripathi (P.W. 4), were also recorded under Section 202 of the Code on 11.6.2003, 8.8.2003, 22.2.2007, 27.7.2007 and 4.12.2007 respectively by the concerned Magistrate. It appears that on 19.2.2009, the arguments were heard and 24.2.2009 was the date fixed for orders and on 24.2.2009, the learned Magistrate summoned the complainant/ applicant and his witnesses for the purposes of further enquiry and fixed 3.3.2009 for the said purpose. In consequence thereof the statement of the complainant/applicant was again recorded on 27.3.2009 under Section 200, Cr. P.C. and on the same day 10.4.2009 was the next date fixed for recording the statements of remaining witnesses under Section 202, Cr. P.C." Being aggrieved with the order dated 24.2.2009, the applicant has preferred the present application before this Court mainly on the ground that after recording the statement of complainant and his witnesses under Sections 200 and 202, Cr. P.C. instead of summoning the accused persons he proposed to summon the witnesses again for their statements to be recorded under Sections 200 and 202, Cr. P.C. which is wholly illegal and improper and is nothing but an abuse of the process of the Court. The learned counsel for the applicant has contended that before summoning the proposed accused persons the learned Magistrate has only to see whether prima facie offence is disclosed or not. The trial court cannot evaluate the evidence that there is no possibility of conviction of the accused persons so summoned and, therefore, there was no recourse open for the learned Magistrate to re-examine the complainant and his witnesses. I have given my anxious consideration to the submissions made by the counsel for the parties and have also perused the entire order-sheet of the case and other material placed on record. I am at loss to comprehend as to how and under which provision the learned Magistrate has proceeded to re-examine the complainant and his witnesses under Sections 200 and 202, Cr. P.C. who have already been examined by the Court concerned on 11.6.2003, 8.8.2003, 22.2.2007, 27.7.2007 and 4.12.2007. Law does not permit the Magistrate to record such statements of the witnesses again. The only option was left for him to proceed further in accordance with law while passing an order under Section 203 or 204, Cr. P.C. whatever may be position.
(3.) THIS case gives a sordid picture how the justice has been throttled, as the judicial process has become an instrument of oppression and made the complainant/applicant run for justice for years together in a case under Section 302, I.P.C. and if this is allowed to be carried on, it will effect people's faith in the efficacy of law and ultimately rule of law will be a casualty. In view of the aforesaid facts and circumstances of the case, the impugned order dated 24.2.2009, passed by the learned Magistrate is wholly illegal and suffers from blatant miscarriage of justice. The application is allowed and the impugned order dated 23.2.2009 is hereby set aside. However, it would be open to the Court concerned to draw appropriate inferences from the evidence on record, unfettered by any finding entered in the order.;