IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application No. 28 of 2002 1. Mohd. Idrish S/o Saqoor Ahmad 2. Mohd. Anees S/o Saqoor Ahmad 3. Shan Mohammad S/o Ashfaq Ali 4. Ishtiyaq S/o Abdul Aziz All R/o Village Dandhera Police Station Kotwali Roorkee District Haridwar. ...…………. Petitioners Versus 1. State of Uttarakhand. 2. First Additional Sessions Judge / Fast Track Court, Haridwar. 3. Additional Chief Judicial Magistrate Roorkee, District Haridwar. 4. Smt. Muzromeen W/o Late Imtiyaz ali R/o Village Dandhera Police Station Kotwali Roorkee, District Haridwar. ...…………. Respondents Mr. Rajendra Singh, Advocate for the petitioners. Mr. B.S. Parihar, Brief Holder for respondents No. 1 to 3. Mr. Mohd. Umar, Advocate for respondent No. 4. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr.P.C.), the petitioners have sought quashing of the order dated 18.04.1996, passed by the trial court, summoning the accused in respect of offence punishable under Section 302 of I.P.C. The trial court has 2 further challenged the order dated 03.01.2002, passed by I F.T.C. / Addl. Sessions Judge, Haridwar, in Criminal Revision No. 186 of 1996, whereby the summoning order has been affirmed by the revisional court. 2) Heard learned counsel for the parties and perused the papers on record. 3) Brief facts of the case are that a first information report was lodged on 11.06.1994, by Mohd. Idrish (petitioner No. 1) against two unknown persons which was registered as Crime No. 168 of 1994, in respect of offences punishable under Section 307 and 302 of I.P.C. In said report Mohd. Idrish has stated that his brother Imtiyaz was murdered and his son Farat was injured. It appears that after investigation police submitted the final report in the case. In the final report it is mentioned that Imtiyaz has died due to accidental shot fired from his own pistol. Against said report the respondent No. 4 Muzromeen, who is widow of the deceased, lodged a protest petition stating that her husband was murdered by Mohd. Idrish, Mohd. Anees, Mohd. Ishtiyaq and Shan Mohammad (petitioners). She explained in the protest petition that she could not report the incident herself, as she was observing Iddat period, after death of her husband. She has alleged that accused Mohd. Idrish himself lodged the first information report against unknown persons to deceive the police and got the final report filed. On said protest petition, the Magistrate examined her under Section 200 of Cr.P.C., and also examined the witnesses P.W. 1 Kazam Ali, P.W. 2 3 Jaan Mohammad, P.W. 3 Constable Suresh Giri and P.W. 4 Dr. O.P. Sharma. Where after accused petitioners, namely Mohd. Idrish, Mohd. Anees, Shan Mohammad and Ishtiyaq were summoned to face the trial in respect of offence punishable under Section 302 of I.P.C. Said summoning order was challenged by the petitioners in the revision before the Sessions Judge. However, after hearing the parties, the same was dismissed. Hence, this petition. 4) Learned counsel for the petitioners submitted that it was the petitioner No. 1 Mohd. Idrish, who filed first information report. It is further pointed out that the complainant, deceased and the petitioners are relatives and live in the same compound. It is contended that respondent No. 4 Muzromeen has himself given statement during investigation that she has not seen anyone committing the murder. Her son Jaan Mohammad who was sleeping with his father and mother has told the police that his father used to keep the country made pistol with him in the cot. Witness Sherjang has explained to the police in his statement under Section 161 of Cr.P.C. that since minor (injured) Farat was also sleeping with his parents (Imtiyaz and respondent No. 4 Muzromeen) due to the accidental shot fired from the country made pistol with which Imtiyaz was sleeping could have caused injuries to Imtiyaz and then it must struck to Farat who was sleeping adjoining to him. The police has accepted said story. 5) Mr. Rajendra Singh, learned counsel for the petitioners argued that it is only the complainant who could 4 have filed a protest petition against the final report submitted by the police. It is submitted that no notice was issued to Mohd. Idrish (petitioner No. 1). It is further contended that respondent No. 4 had no right to file the protest petition. In view of principle of law laid down in Bhagwant Singh Vs. Commissioner of Police, A.I.R. 1985 SC 1285, the argument advanced on behalf of the petitioners has force. As such, the trial court has committed grave error of law in summoning the accused on the protest petition filed by the respondent No. 4. From the perusal of the record it is clear that the incident had occurred on 11.06.1994, and the respondent No. 4 never filed any first information report regarding the murder of her husband, though, she alleges that she was sleeping with her husband in the night when the incident occurred. The explanation given by her for her not filing the first information report is ridiculous. Assuming for a moment, that she could not lodged the first information report, as she must have been observing ‘Iddat’ after death of her husband, she could have filed a criminal complaint immediately thereafter before the court. But, she has not done so. In the protest petition which is treated as criminal complaint by the Magistrate, the respondent No. 4 has stated that she caught hold of petitioners Idrish and Ishtiyaq. But, she has not explained why then they were not taken to the police station after they were caught by her at the time of the incident, particularly, when she states that villagers had come to her house after hearing the sound of firing. 5 6) Having considered submissions of learned counsel for the parties and after going through the papers on record, this Court finds that the Magistrate has erred in law in summoning the accused / petitioners treating the protest petition of third person as criminal complaint, as the person making the protest petition was not the complainant. The learned revisional court has also erred in law by mentioning that the cognizance has not been taken on the protest petition but on criminal complaint. A copy of the protest petition is annexed as Annexure –14 with this petition. No counter affidavit has been filed on behalf of respondent No. 4 in this petition under Section 482 of Cr.P.C. for last seven years. The only counter affidavit filed on behalf of the State reiterates the fact that after investigation final report was submitted by the police. The final report was submitted by the police on 30.06.1994, and the protest petition has been filed long thereafter on 02.03.1995, as is clear from Annexures 13 and 14 filed with the petition. 7) For the reasons as discussed above, this petition under Section 482 of Cr.P.C. deserves to be allowed. The same is allowed. The impugned order dated 18.04.1996, passed by the Additional Chief Judicial Magistrate, Roorkee, in Criminal Case No. 152 of 195, and the order dated 03.01.2002, passed by the I F.T.C. / Addl. Sessions Judge, Haridwar, in Criminal Revision No. 186 of 1996, are hereby quashed. (Prafulla C. Pant, J.) Dt. March 11, 2010. H. Negi