Rampal Singh and Others Vs. State of U.P.and Another - Court Judgment

Excerpt:
[asok kumar ganguly; deepak verma] indian penal code section 147 - punishment for rioting -- the trial court pronounced the judgment on 31.3.1995, holding the accused gopal guilty for commission of offences under sections 148, 302,323/149 ipc, accused shanker lal and nand lal under sections 148,302/149, 323 ipc, accused chhotelal and dinesh under sections 148/302/149,323/149 ipc and awarded punishment together with fine as described in its judgment. the high court, in the appeal of gopal, has found him guilty for commission of offence under section 304 part-i ipc and awarded rigorous imprisonment for 10 years, whereas in the other criminal appeal, accused shankarlal, nandlal and chhotelal were found guilty for commission of offence under section 324 ipc and awarded sentence to the period already undergone by them with fine of rs. 200/- each. state has preferred appeal only against that part of the judgment and order, whereby accused shankarlal, nandlal and chhotelal have been found guilty under section 324 ipc and accused dinesh has been acquitted. accused gopal has preferred appeal on the ground that in view of the free fight between accused and the complainant party and the nature of injuries sustained by some of the accused persons, he deserves to be acquitted. it is pertinent to mention here that state has not preferred any appeal against the judgment of the high court wherein and whereunder conviction and sentence awarded to accused gopal under section 302 ipc was altered to one under section 304 part-i ipc. in this view of the matter, the state cannot challenge that accused gopal should have been convicted under section 302 ipc. accused chhotelal inflicted blow by cycle-chain on tulsiram. accused dinesh was pelting stones on the injured persons. in defence, the accused had also examined two witnesses. since, injuries were sustained by shankarlal and gopal. it was also contended by learned counsel for the accused gopal that the prosecution has failed to explain the injuries sustained by shankarlal and gopal and the complainant party was aggressor. as mentioned hereinabove, since there is no appeal preferred by the state against that part of the judgment whereby the accused gopal has been found guilty for commission of offence under section 304 part-i ipc and acquitted under section 302 ipc, we are afraid, there cannot be any scope for considering the conviction of accused gopal from section 304 part-i to 302 ipc. 1. heard sri s.k. agarwal, learned counsel for the applicants and learned aga for the state.2. no notice is issued to private opposite party no. 2 in view of the order proposed to be passed today, however, liberty is reserved for private opposite party no. 2 to apply for variation or modification of this order if he feels so aggrieved. 3. this application u/s 482 cr.p.c. has been filed with a prayer to quash the order dated 2.6.2010 passed by the judicial magistrate/ addl. civil judge (j.d.)-ii, moradabad in complaint case no. 622 of 2006 (uma v. ram pal & others), under sections 498a, 323, 504, 506 ipc & d.p. act, p.s. civil lines, district- moradabad, whereby the application moved on behalf of the applicantsaccused for re-examination of witnesses examined u/s 244 cr.p.c. was rejected.4. the impugned order was challenged earlier by the applicants by means of criminal revision no. 3173 of 2010, which was dismissed by another bench of this court vide order 11.1.2011 on the ground of maintainability and liberty was granted to the applicants to file an application u/s 482 cr.p.c. against the impugned order.5. the applicants are the accused in the case pending before the magistrate whereas opposite party no. 2 is the complainant. even before the presence of the accused persons was procured duringtrial, on 23.2.2006 two witnesses on behalf of the complainant were examined by the magistrate u/s 244 cr.p.c. in the absence of the accused. a certified copy of the order-sheet has been filed in the records of the revision, which is before this court. earlier the applicants approached this court by means of application u/s 482 cr.p.c. no. 12824 of 2005 for quashing the proceedings, which was disposed of vide order dated 13 th september, 2005 with liberty to move an application for discharge through counsel. such application was moved and ultimately rejected by the magistrate. on 1.12.2006 and 2..6.2008, the accused persons surrendered before the court below and were granted bail.6. on 12.5.2010, an application was moved on behalf of the applicants that statements u/s 244 cr.p.c. were recorded in the absence of the accused and therefore, those witnesses should be reexamined u/s 244 cr.p.c. the said application was rejected by the magistrate. 7. learned counsel for the applicants submitted that for recording evidence u/s 244 cr.p.c., the presence of accused is a must. section 244 cr.p.c. provides as under :-"evidence for prosecution.- (1) when, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a magistrate, the magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.(2) the magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 8. from the aforesaid provision, it is obvious that for recording evidence u/s 244 cr.p.c., the presence of accused in court is necessary. the presence of the accused may either be in person or through counsel but order dated 23.2.2006 specifically mentions that none appeared on behalf of the accused persons. it is clear thaton 23.2.2006, when statements of p.w.-1 and p.w.-2 were recorded by the magistrate u/s 244 cr.p.c., neither the accused persons were present nor their counsel. therefore, those statements cannot be deemed to be evidence in the case and cannot be said to be proper statements u/s 244 cr.p.c.9. it appears that learned magistrate does not have any clear idea of procedure prescribed for complaint cases. under section 244 cr.p.c. makes it clear that before recording evidence of the complainant , presence of the accused is necessary.10. in these circumstances, the impugned order cannot be sustained and is liable to be quashed.11. the application is allowed. the impugned order dated 2..6.2010 is quashed. learned magistrate is directed to record the statements of p.w.-1 and p.w.-2 again u/s 244 cr.p.c. and thereafter shall proceed with the case in accordance with law.12. copy of this order be sent to district judge, moradabad, so that he may impart proper advice and guidance to the magistrates.

Judgment:
1. Heard Sri S.K. Agarwal, learned counsel for the applicants and learned AGA for the State.

2. No notice is issued to private opposite party no. 2 in view of the order proposed to be passed today, however, liberty is reserved for private opposite party no. 2 to apply for variation or modification of this order if he feels so aggrieved.

3. This application u/s 482 Cr.P.C. has been filed with a prayer to quash the order dated 2.6.2010 passed by the Judicial Magistrate/ Addl. Civil Judge (J.D.)-II, Moradabad in complaint case no. 622 of 2006 (Uma v. Ram Pal & others), under Sections 498A, 323, 504, 506 IPC & D.P. Act, P.S. Civil Lines, District- Moradabad, whereby the application moved on behalf of the applicantsaccused for re-examination of witnesses examined u/s 244 Cr.P.C. was rejected.

4. The impugned order was challenged earlier by the applicants by means of Criminal Revision No. 3173 of 2010, which was dismissed by another Bench of this Court vide order 11.1.2011 on the ground of maintainability and liberty was granted to the applicants to file an application u/s 482 Cr.P.C. against the impugned order.

5. The applicants are the accused in the case pending before the Magistrate whereas opposite party no. 2 is the complainant. Even before the presence of the accused persons was procured duringtrial, on 23.2.2006 two witnesses on behalf of the complainant were examined by the Magistrate u/s 244 Cr.P.C. in the absence of the accused. A certified copy of the order-sheet has been filed in the records of the revision, which is before this Court. Earlier the applicants approached this Court by means of Application u/s 482 Cr.P.C. No. 12824 of 2005 for quashing the proceedings, which was disposed of vide order dated 13 th September, 2005 with liberty to move an application for discharge through counsel. Such application was moved and ultimately rejected by the Magistrate. On 1.12.2006 and 2..6.2008, the accused persons surrendered before the court below and were granted bail.

6. On 12.5.2010, an application was moved on behalf of the applicants that statements u/s 244 Cr.P.C. were recorded in the absence of the accused and therefore, those witnesses should be reexamined u/s 244 Cr.P.C. The said application was rejected by the Magistrate.

7. Learned counsel for the applicants submitted that for recording evidence u/s 244 Cr.P.C., the presence of accused is a must. Section 244 Cr.P.C. provides as under :-

"Evidence for prosecution.- (1) When, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

8. From the aforesaid provision, it is obvious that for recording evidence u/s 244 Cr.P.C., the presence of accused in court is necessary. The presence of the accused may either be in person or through counsel but order dated 23.2.2006 specifically mentions that none appeared on behalf of the accused persons. It is clear thaton 23.2.2006, when statements of P.W.-1 and P.W.-2 were recorded by the Magistrate u/s 244 Cr.P.C., neither the accused persons were present nor their counsel. Therefore, those statements cannot be deemed to be evidence in the case and cannot be said to be proper statements u/s 244 Cr.P.C.

9. It appears that learned Magistrate does not have any clear idea of procedure prescribed for complaint cases. Under Section 244 Cr.P.C. makes it clear that before recording evidence of the complainant , presence of the accused is necessary.

10. In these circumstances, the impugned order cannot be sustained and is liable to be quashed.

11. The application is allowed. The impugned order dated 2..6.2010 is quashed. Learned Magistrate is directed to record the statements of P.W.-1 and P.W.-2 again u/s 244 Cr.P.C. and thereafter shall proceed with the case in accordance with law.

12. Copy of this order be sent to District Judge, Moradabad, so that he may impart proper advice and guidance to the Magistrates.