R.D. Khare, J. - (1.) HEARD learned Counsel for the applicants, Sri Satya Prakash Srivastava, learned Counsel ap pearing for the opposite party No. 2 and learned A.G.A. for the State respondent.
(2.) THE present 482, Cr.P.C. applica tion has been filed for quashing the order dated 9.1.2009 passed by Chief Judicial Magistrate, Allahabad in case No. 73 of 2009 (case crime No. 198 of 2004), P.S. Kaundhiara District Allahabad, whereby final report has been rejected and appli cants have been summoned to face trial under section 302 IPC. Learned Counsel for the appli cants has submitted that the applicant No. 1 had lodged a first information report on 9.8.2004 under section 304-B, IPC pertain ing to the dowry death of his daughter, Mamta, copy of which has been filed as Annexure-1 to the affidavit. It is further submitted that as the news of murder of Mamta spread, Krishna Pratap Singh, hus band of Mamta, committed suicide on 2.8.2004. Taking advantage of the situation, opposite party No. 2, lodged a first infor mation report against the applicants under section 306 IPC, after 18 days of the alleged incident, to put pressure upon the appli cants not to depose against opposite party No. 2 and his family members in the pro ceedings under section 304-B, IPC. A copy of the said first information reported has been annexed as Annexure-5 to the affi davit. The post mortem of Krishna Pratap Singh was conducted by Dr. A.K. Tripathi, who, in his post-mortem report, had re ported that cause of death was asphyxia as result of strangulation and that the hyoid bone was fractured, a copy of which has been filed as Annexure 3 to the affidavit. It is further contended that the statement of Dr. A.K. Tripathi, under section 161, Cr.P.C. was also recorded in which he had stated that the death of Krishna Pratap Singh was due to strangulation. The police, after investigation, submitted final report on 16.9.2004, against which opposite party No. 2 filed a protest petition before the concerned Magistrate. The Magistrate di rected the police for further investigation. It is also contended that officer incharge of the police station concerned referred the matter for second medical opinion to the department of Forensic Medicine, Moti Lal Nehru Medical College, Allahabad, copy of has been filed as Annexure-9 to the application. Thereafter, Professor U.S. Sinha of Moti Lal Nehru Medical College, Allahabad, submitted his opinion/report on 20.8.2007, copy of which has been filed as Annexure-10 to the affidavit and he was of the opinion that the death of Krishna Pratap Singh was due to hanging. It is fur ther contended that thereafter police again submitted final report on 10.10.2007, against which opposite party No. 2 again filed a protest petition. The Magistrate, vide its order dated 7.3.2008 directed the case to be registered' as a complaint case. Aggrieved by the aforesaid order of Magis trate the opposite party No. 2 filed criminal revision No. 248 of 2008 in the Court of Additional District and Sessions Judge, Court No. 8, Allahabad, who vide its order dated 19.9.2008, quashed the order of Magistrate dated 7.3.2008 and directed the Magistrate to pass a fresh order after hearing the Counsel for the revisionist, in accordance with law, copy of the said order " dated'19.9.2008 has been filed as Annex-ure-12 to the affidavit. Pursuant to the or der of Revisional Court dated 19.9.2008, Chief Judicial Magistrate, Allahabad passed a fresh order rejecting the final re port and summoning the applicants to face trial under section 302 IPC, which is im pugned in the present application. Perused the material on record as well as the order impugned. The record shows that there are two contradictory medical reports pertaining to cause of death of Krishna Pratap Singh by two doctors and as per Modi's Medical Juris prudence and Toxicology, hyoid bone fracture is often found in strangulation. 6. Reference may be drawn to the difference between hanging and strangula tion, as given in the Modi's Medical Juris prudence and Toxicology, which is as fol lows. 7. This Court cannot delve into the question of fact which is to be considered and decided by the Trial Court, after con sidering the entire facts and evidence on record. The legitimate prosecution cannot be held up only on the ground that the opposite party No. 2 had lodged a first in formation report under section 306 IPC. The Court has the power to examine the facts and evidence on record and thereafter summon the persons accused, under the relevant section/sections of Indian Penal Code. This view has also been taken by the Hon'ble Apex Court in its judgment in Inder Mohan Goswami and another v. State of Uttaranchal and others? wherein Hon'ble Apex Court has held that power under section 482, Cr.P.C. should not be exercised to stifle a legitimate prosecution and the Court should refrain from giving a prima facie decision in a case where entire facts are not complete and hazy. 8. Considering the aforesaid facts, this Court is of the opinion that the Court below has rightly summoned the applicants to face trial under section 302 IPC, which order suffers from no infirmity in law which may warrant any interference by this Court in exercise of powers under sec tion 482, Cr.P.C. 9. The applicants have their right to defend themselves in the trial by adducing evidence and at this stage, they suffer from no adversity by passing of the order impugned. The Hon'ble Supreme Court in its judgment Som Mittal v. Government of Kar-nataka, 2 has held that inherent power under section 482, Cr.P.C. should be exercised sparingly with circumspection, in the rarest of rare cases. 10. The prayer for quashing the summoning order is hereby refused. 11. Accordingly, the application is dismissed. Application Dismissed.;