HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 23.10.2019
Delivered on 26.11.2019
Case :- U/S 482/378/407 No. – 3818 of 2013
Applicant :- Gopal Das Agarwal And Ors.
Opposite Party :- The State Of U.P Thru Principal Secy., Home Lucknow And Anr.
Counsel for Applicant :- Sanjay Kumar Srivastava, Rajiv Srivastava
Counsel for Opposite Party :- Govt. Advocate,Alok Kumar Srivastava,Deo Prakash Srivastav,Kaushal Kishore Tewari
Hon’ble Dinesh Kumar Singh,J.
1. This petition under Section 482 CrPC has been filed by the petitioners for quashing of the orders dated 03.07.2013 and 03.08.2013 passed by the Chief Judicial Magistrate, Sitapur in Misc. Case No.105/2010 (Smt. Rashmi Agarwal Vs. Gopal Das and others) under Sections 302/Section120-B IPC whereby, on protest petition filed by respondent no.2 to the final report submitted by the police under Section 173(2) CrPC, the learned Magistrate has rejected the final report and taken cognizance under Section 190(1)(b) of the CrPC. Thereafter, vide order dated 03.08.2013 non-bailable warrants had been issued against the petitioners.
2. Petitioner Nos. 1 and 2 are the father and mother of Parag Agarwal (hereinafter referred to as the ‘deceased’). Petitioner No. 3 is the elder brother of the deceased. Petitioner No. 4 is the sister-in-law (Bhabhi) of the deceased. Petitioner no. 5 is the brother-in-law (Bahnoi) of the deceased and the petitioner no. 6 is the sister of the (deceased), whereas the respondent no. 2 is the widow of the deceased.
3. Petitioner Nos. 1, 2, 3 and 4 are the residents of the LIC Colony Tagore Town, Allahabad, whereas Petitioner Nos. 5 and 6 are residents of Gautambudh Nagar (Noida).
4. Marriage of the deceased with Rashmi Agarwal, respondent No. 2 took place on 17.11.2005 at Allahabad. After marriage, the deceased and respondent no. 2 started living at Ghaziabad, where the deceased was carrying on some business.
5. It appears that the deceased fell seriously ill, while living at Ghaziabad and, therefore, on 19.06.2009 he was admitted in Kailash Hospital, Noida for his treatment. His condition did not improve and, therefore, he was shifted to the All India Institute of Medical Sciences, New-Delhi (hereinafter referred to as the ‘AIIMS’) on 14.07.2009 where ultimately he died on 10.10.2009 during his treatment.
6. From the death summary report of the deceased prepared by the Department of Neurology, AIIMS, New Delhi, it is evident that the deceased was suffering from Subacute Sclerosing Panencephalitis (SSPE), which could be detected by conducting Biopsy Examination. It is mentioned in the death summary report, which has been placed on record as Annexure-3, that the deceased was suffering with progressive cognitive decline since May, 2009. His symptoms, included changes in handwriting, right left disorientation, and deterioration in comprehension without any high order preceding fever, headache nausea and vomiting, seizures or myoclonus. His symptoms were progressive, and by July he was in altered sensorium, unable to comprehend, speak meaningfully or to feed himself. When the deceased was admitted in AIIMS, New Delhi, he had started to run fever and labored breathing. There was no high order photo-sensitivity/oral; ulcers/joint pains. No high order skin rash, no high order vision loss or diplopia, and he had also not received any recent vaccination. It was said that the deceased had minor deviation of face to right side. There was spasticity in all four limbs. All deep tendon reflexes were brisk and plantars were extensor.
7. After carrying out several medical examinations and tests, the deceased was given course of Acyclovir to which he did not respond. His general condition deteriorated and he had to be put on mechanical ventilation on 19.07.2009. CSF and serum antimeasles antibody was positive. Brain biopsy was conducted on 05.08.2009 and, it was consistent with SSPE.
8. On the basis of aforesaid biopsy, the final diagnosis of Subacute Sclerosing Panencephalitis (SSPE) was established. The deceased was, therefore, started given Intrathecal interferon (6 MU once a week for four weeks followed by once a month) and Tab Isoprinosine 15gm per day. The deceased also developed generalized tonic clonic seizures during hospital stay for which he was given injunction Phenytoin and sodium valproate. His condition, however, did not improve, and he was not taken out from the ventilation due to poor respiratory effort. The deceased also developed fever and chest infection. The deceased was given antibiotics according to the sensitivity report of urine and blood culture. Despite all these efforts, the deceased developed sepsis and hypotension and on 10.10.2009, he succumbed to his illness.
9. The said report was prepared by Dr. Bhavna Kaul, Senior Resident of Department of Neurology, AIIMS, New Delhi.
10. It is alleged that a complaint was sent to Director General of Police, Uttar Pradesh, Lucknow by the respondent no. 2 through her father, alleging therein foul play in the death of the deceased. Allegations in the complaint were made that the petitioners, in conspiracy with each other, administered poison in the drink on 13.06.2009 and because of that he fell ill. The complainant also alleged that petitioner no. 5, brother-in-law of the deceased, and son-in-law of petitioner nos. 1 and 2 took Rs. 40 Lakhs from the deceased, but he did not return the same to the deceased and on 19.01.2009, the deceased stopped working with petitioner no.5, and joined ERA Construction Company, Okhala, Delhi. It was said that when the deceased was admitted in Kailash Hospital, Noida, the respondent no. 2 was not allowed to meet him frequently and, he was given medicine Jogirous etc. without her consent. It was also said that, after the death of the deceased on 10.10.2009 in AIIMS, New Delhi, his body was cremated hurriedly.
11. The aforesaid complaint was forwarded to the Circle Officer, Nagar-I, District Gautambudh Nagar (Noida). The Circle Officer entrusted the inquiry to Sub-Inspector Mr. Vedram Singh, Police Station Sector-39, Noida, who conducted the inquiry and found that the deceased had died as a result of his illness on 10.10.2009. There was no evidence to suggest that the deceased died because he was administered poison. The copy of inquiry report has been placed on record as Annexure-4. Thereafter, the respondent no. 2 filed an application under Section 156(3) CrPC on 22.01.2010 in the Court of Chief Judicial Magistrate, Sitapur, alleging therein that the deceased had several flats and insurance policy, and a huge amount of money was kept by him in the Bank. It was further said that the complainant’s 4 kg gold, which was her ‘Stridhan’ was kept in a bank-locker at Allahabad. Complainant’s deceased husband told her that he had given more than Rs 40 Lakhs to his sister and brother-in-law, petitioner nos. 5 and 6. It was also said that the deceased told the complainant, during his life-time, that his family members had an eye on his wealth and property.
12. In the complaint, it was averred that on 19.06.2009 the deceased fell ill, and he was admitted in Kailash Hospital, Noida where he recovered within one or two days. The Doctor told her that in medical examination it was found that there was no problem at all and, therefore, the complainant brought him to her home at Ghaziabad. However, on 23.06.2009, respondent nos. 5 and 6 got the deceased admitted again in Kailash Hospital, Noida where Dr. Anoop Agarwal, who was a close friend of respondent no. 5, was working. Dr. Anoop Agarwal was living in a flat, which was made available to him by respondent no. 5.
13. The complainant further alleged that after the deceased was taken to Kailash Hospital, Noida on 23.06.2009, she came to Sitapur to give her exams. It was said that after the deceased was admitted in the hospital on 23.06.2009, she was not informed about the progress of his treatment. On 30.06.2009, the father of respondent no. 2 reached to Kailash Hospital, Noida, and he asked the petitioners to get the deceased discharged from hospital and take him to some other good hospital as the treatment was not properly given to him at Kailash Hospital, Noida. The complainant said that Dr. Anoop Agarwal gave some injection in criminal conspiracy with the respondent nos. 5 and 6, and other family members and as a result of which the deceased went in coma.
14. It appears that the learned Magistrate passed an order, issuing direction to register an FIR and pursuant to which, FIR at Case Crime No.117 of 2019, under Sections 302, Section120-B, Section420, Section504, Section506 and Section406 IPC was lodged at Police Station Kotwali, Sitapur against the petitioners and Dr. Anoop Agarwal.
15. The investigating officer investigated the offence alleged in the FIR and prepared final report dated 19.02.2010, stating that no offence had been committed and the deceased died because of his illness for which he was treated for four months. The death of the deceased was for natural causes. The accused were innocent. The investigating officer closed the investigation, and prepared the final report under Section 173 (2) SectionCrPC.
16. The respondent no. 2 was not satisfied with the final report dated 19.02.2010 and, she made a complaint to the Superintendent of Police, Sitapur, requesting him to order for re-investigation. The Superintendent of Police, Sitapur vide order dated 01.04.2010 ordered for further investigation of the offence by Special Investigation Branch.
17. Pursuant to the order passed by the Superintendent of Police, Sitapur the investigation of the offence was entrusted to Mr. Mithlesh Kumar Srivastava. The investigating officer, during the course of investigation, recorded statements of Dr. Rajiv Motiyani of Kailash Hospital and Dr. Bhavna Kaul, Senior Resident, Department of Neurology, AIIMS. Dr. Rajiv Motiyani, in his statement recorded under Section 161 CrPC, said that he was working in Neurology Department of Kailash Hospital. The deceased was admitted in Kailash Nursing Home on 19.06.2009. He was suffering from some viral infection in brain and because of that his brain stopped working. He also said that the patient, with such a disease, would not survive more than six months. On 14.07.2009, the deceased was sent to AIIMS, New Delhi from Kailash Hospital, Noida.
18. Dr. Bhavna Kaul, Senior Resident, Department of Neurology, AIIMS, New Delhi in her statement said that from diagnosis, it was found that the deceased was suffering from Subacute Sclerosing Panencephalitis (SSPE), and it had reached to advance stage of brain. In modern medical science, treatment of this disease was not available and, the deceased died because of disease SSPE. Dr. Bhavna Kaul had also said that the allegations of the complainant were completely false and concocted.
19. It appears that on 14.07.2019, the Special Investigating Branch, Sitapur wrote to the Chief Medical Officer, District Sitapur, for medico-legal opinion, by sending all he prescriptions relating to the treatment given to the deceased at Kailash Hospital, Noida as well as AIIMS, New Delhi and, it was requested that after considering the documents, the opinion should be given; whether the death of the deceased was because of some ailment or he was administered wrong injection/medicines or poison, as the complainant had alleged that the deceased did not die because of some ailment, but he was murdered by giving wrong injection. The Chief Medical Officer, Sitapur constituted a Medical Board for the said purpose, and the Medical Board vide its report dated 25.07.2010 said that the deceased had died because of ailment Subacute Sclerosing Panencephalitis (SSPE).
20. After collecting the evidence, including the medico-legal report, the Special Investigation Team, which was conducting the investigation, submitted final report dated 04.08.2010, and it was said that the deceased had died because of Subacute Sclerosing Panencephalitis (SSPE). It was further said that the petitioner nos. 1 and 6, who are father and sister of the deceased, did not commit any wrong or malicious act in respect of insurance of the deceased which was of ICICI Prudential. In the said insurance policy, nominees were parents of the deceased i.e. petitioner nos. 1 and 2. No evidence was found regarding 4 kg gold, which was allegedly taken by petitioner Nos. 1 and 2, as per the complainant. It was further said that there was a bank locker in the joint names of the complainant and the deceased in Axis Bank, Branch Noida. The evidence had come that the complainant was operating the bank locker after the death of the deceased. It was, therefore, further said that if the complainant had jewellery of 4 kg gold then, the same would have been taken out from the locker by the complainant herself. The complainant had not produced any document that from where 4 kg gold ornaments came to her. The 4 kg gold ornaments were not shown in income return filed by the deceased. No evidence was found regarding the petitioners coming to Sitapur, and indulging in any altercation or beating the complainant, as alleged, or otherwise. Petitioner no. 3, Prashant Agarwal was working as D.O. in L.I.C., and on 24.09.2009, when it was said that the petitioners came to Sitapur, abused and beaten the complainant, he was present in the office of L.I.C., Civil Lines Branch, Allahabad.
21. No motive for alleged murder was discovered. It was further said that the complainant made all false allegations against the petitioners. It was also opined that the complainant wanted to extort a huge amount from the petitioners, and for that purpose, she made completely false and concocted allegations against the petitioners. The investigating officer concurred the previous final report dated 19.02.2010, and said that the complainant married the deceased, who was physically handicapped, only with a purpose to grab the property and money of the deceased. In view thereof, since no offence, as alleged, was found to have been committed by the petitioners, final report was submitted.
22. Thereafter, an application under Section 125 CrPC was filed by the respondent no. 2 in the Court of Chief Judicial Magistrate, Sitapur, demanding Rs. 4 Lakhs per month for maintaining her and her minor daughter as well as Rs.25 Lakhs to pay loan amount, which was taken in her name by the deceased. No order was passed on the said application.
23. The respondent no. 2, thereafter filed a civil suit on 30.03.2010 in the Court of Civil Judge, Senior Division, Sitapur being O.S. No.286 of 2010 ‘Smt. Rashmi Agarwal Vs. Gopal Das Agarwal, Pushpa Agarwal and ICICI Prudential Life Insurance Company through its Branch Manager. A prayer for interim injunction was also made for restraining ICICI Prudential from giving the claim of the insurance policies to the nominees. The respondent no.2 also filed a suit for issuance of succession certificate before the Civil Judge, Ghaziabad being Case No.702 of 2010, but before that Testamentary Case No.02 of 2010 was filed by the petitioner Nos. 1 and 2 before this Court at Allahabad in January, 2010. Thereafter, the complainant also filed Testamentary Case No. 24 of 2011. Both the testamentary cases i.e. Testamentary Case Nos.02 of 2011 and 24 of 2011 were clubbed and vide common judgment and order dated 16.04.2012 they were decided. The Testamentary Case No. 24 of 2011, filed by the respondent no. 2, was dismissed for want of prosecution, while Testamentary Case No. 02 of 2011 filed by the petitioner nos. 1 and 2 was allowed. Smt. Pushpa Devi, mother of the deceased, had been held to be entitled for grant of Letters of Administration to the Estate of the deceased in view of father and brother of the deceased consented for grant of Letters of Administration in her favour. The respondent no.2 did not pursue her Testamentary Case No. 24 of 2011 and, therefore, the same was dismissed for non-prosecution.
24. It appears that an FIR at Case Crime No. 89 of 2010, under Sections 147, 323, 504, 506 and 452 IPS was lodged on 05.04.2010 at Police Station George Town, Allahabad on the complaint of the petitioner no. 1, alleging therein that the respondent no. 2, her father and 4-5 other persons came at Allahabad and assaulted the parents of the deceased, and other family members. The investigating officer had submitted the charge-sheet in the said matter.
25. The respondent no. 2, being dissatisfied with the final report, filed protest petition being Application No.29-C of 2010 in Case Crime No. 117 of 2010. On the said protest petition, learned Chief Judicial Magistrate, Sitapur had taken cognizance, and passed the impugned orders, as mentioned above.
26. It appears that in application under Section 407 CrPC filed by the petitioner no. 1, being Criminal Misc. Transfer Application No.52 of 2013, vide order dated 20.05.2015 the parties were referred to the Mediation and Conciliation Center of this Court. With the efforts of the Mediation Center, a settlement agreement was entered into between the parties on 06.08.2015. The terms of the settlement agreement signed by the parties, mediators, and counsel for the parties, have been placed on record along with rejoinder affidavit. The parties had specifically agreed to terminate the proceedings of the cases, which include the following:-
“i) Case No.1028 of 2010 ‘State of U.P. Vs. Ram Kumar Vaishya and others’ registered at Case Crime No.89 of 2010, under Sections 147, Section223, Section504, Section506 and Section452, Police Station George Town, pending in the Court of J.M. 2nd in the Court at Allahabad;
ii) Complaint Case No.82 of 2011 ‘Gopal Das Agarwal Vs. Ram Kumar Vaishya and others’ under Sections 323, Section504, Section506, Section499 and Section500 IPC, Police Station George Town, pending in the Court of ACJM, Allahabd;
iii) Testamentary Case No.2 of 2011 in the matter of the Estate of Late Parag Agarwal, Smt. Pushpa Devi Agarwal Vs. Smt. Rashmi Agarwal wife of Late Parag Agarwal decreed on 16.04.2012 and recall rejected on 24.04.2015;
iv) Testamentary Case No. 24 of 2011 ‘Smt. Rashmi Agarwal wife of Late Parag Agarwal Vs. Gopal Das Agarwal dismissed on 16.04.2012;
v) Misc. Case No. 105 of 2010 registered at Case Crime No. 117 of 2010, under Sections 302, Section201, Section420, Section406 and Section504 IPC on Application No.29(C) of 2010 ‘Smt. Rashmi Agarwal wife of Late Parag Agarwal Vs. Gopal Das Agarwal and others’, pending in the Court of CJM, Sitapur. Second party is ready to sign a counter affidavit to withdraw the case on her part;
vi) Declaratory Suit No.286 of 2010 ‘Smt. Rashmi Agarwal wife of Late Parag Agarwal Vs. Gopal Das Agarwal and others at Sitapur;
vii) Case No. 702 of 2010 (Succession Case) Smt. Rashmi Agarwal wife of Late Parag Agarwal Vs. Gopal Das Agarwal and others, pending in the Court of Civil Judge (Senior Division), Ghaziabad. Whatever an amount would be determined, Sri Gopal Das Agarwal father of Late Parag Agarwal and Smt. Pushpa Devi Agarwal mother of Late Parag Agarwal will not claim own share in the amount;
viii) Case filed by Smt. Rashmi Agarwal wife of Late Parag Agarwal, under Section 125 CrPC against Gopal Das Agarwal and others at Sitapur; and
ix) Complaint Case No.3988 of 2011 (Misc. case no.273/2011) u/s 12, 18, 19, 20, 22, 23 of Protection of Women from SectionDomestic Violence Act ‘Smt. Rashmi Agarwal wife of Late Parag Agarwal Vs. Gopal Das Agarwal and others, pending in the Court of AJC IV (Senior Division), Sitapur.”
27. It was further said that the parties were willing to withdraw all the pending cases against each other unconditionally, out of their free-will, and it was also agreed that in future the parties would not file any civil or criminal proceedings against each other.
28. The other terms and conditions of the said settlement agreement are as under:-
“D) Smt. Rashmi Agarwal W/o Late Parag Agarwal and Km. Ananya Agarwal, D/o Late Parag Agarwal (Second Party) will have no claim whatsoever in future against the movable and immovable property of First Party and Third Party and also will not file any civil or criminal case against First Party and Third Party vise versa Third Party and First Party will also not file any civil or criminal case against second party.
E) Further Smt. Rashmi Agarwal W/o Late Parag Agarwal and Km. Ananya Agarwal D/o Late Parag Agarwal (Second Party) will not file any claim in regard to claim of ICICI Prudential insurance policies (No.01560904 01238924) received by the First Party. The amount of claim already utilized in settling the medical dues, Hospital expenses and other dues standing over the deceased Late Parag Agarwal at the time of death except above two mentioned policy any other policy comes in the knowledge of the second party, she will be free for claiming that amount.
F) Apart from cases mentioned, if there are any other cases pending in any court of law against/between First, Second Third Parties till the date of settlement they will be treated to be withdrawn/settled against the parties concerned.
G) Whereas whatever amount will be collected towards insurance policy no.310326936 that will be paid to the second party by the first party prior to decision of the case through the bank draft.
H) Whereas If any of the aforesaid condition is not fulfilled this agreement would be deemed to be cancelled.
I. That Sri Gopal Das Agarwal, Smt. Pushpa Devi Agarwal, Sri Prashant Agarwal Smt. Meeta Agarwal (First Party), Sri Sanjay Agarwal Smt. Rashmi Agarwal W/o Sri Sanjay Agarwal (Third Party) or company belonging to first party or third party have agreed to have no claim over the Flat no.314 coral Apartment, Ramprasth Green, Sector-7 Vaishali, Ghaziabad, and Maruti Zen Car (UP14-A-A8579). Whatver dues are due towards above mentioned flat will be paid by the Second Party and any dispute or correspondence with bank or any other authority will be settled by Smt. Rashmi Agarwal W/o Late Parag Agarwal, Km. Ananya Agarwal D/o Late Parag Agarwal (Second Party).
7. By signing this agreement the Parties hereto state that they have no further claims or demands against each other with respect to any of the cases mentioned herein above references of which have been mentioned in column A of para 6 and all disputes and differences in this regard have been amicably settled by the Parties hereto through the process of Mediation/Conciliation.”
29. It is specifically said that the petitioners have acted on every promise made in the settlement agreement, including their compromise in respect of Flat no.314 coral Apartment, Ramprasth Green, Sector-7 Vaishali, Ghaziabad, and Maruti Zen Car (UP14-A-A8579). This Court vide judgment and order dated 04.04.2006 passed in Criminal Case No. 52 of 2013, under Section 407 CrPC, had quashed proceedings of all the cases, mentioned above, except the present case.
30. Head Mr. Amrendra Nath Singh, learned Senior Advocate, assisted by Mr. Sanjay Kumar Srivastava, appearing for the petitioners, Mr. Balram Singh, learned Additional Government Advocate, respondent no. 2, Ms. Rashmi Agarwal, who appeared in person, and Mr. Deo Prakash Srivastava, Advocate, appearing for respondent no. 2, and perused the entire record.
31. On behalf of the petitioners, Mr. Amrendra Nath Singh, learned Senior Counsel, has submitted that three investigations conducted by the three different police officers have found in unambiguous and categorical terms that the allegations of any foul play in the death of deceased were completely false and motivated. the deceased, died for natural causes, due to Subacute Sclerosing Panencephalitis (SSPE) during his treatment at AIIMS, New Delhi. He has further submitted that there was no material, on the basis of which, the learned Magistrate should have taken cognizance on the police report under Section 190(1)(b) CrPC. He has further submitted that the prosecution of the petitioners is with ulterior motive, for extraneous purposes, to achieve object of extorting money and property from the petitioners. He has further submitted that the death summery report, and, thereafter the statement of Doctors clearly establish that the allegations levelled by the respondent no. 2 that the deceased was given poison/injected poison at the Kailash Hospital cannot be believed since it has no foundation. He has further submitted that not only the Doctors of the Kailash Hospital and AIIMS, New Delhi, but the Medical Board constituted by the Chief Medical Officer, Sitapur has also opined in categorical terms that the death of the deceased occurred because of ailmet of Subacute Sclerosing Panencephalitis (SSPE). He has further submitted that the Magistrate, without any material, has taken cognizance on the police report where there was not even an iota of evidence to suggest the commission of any offence by the petitioners. He has further submitted that while taking cognizance under Section 190(1)(b) CrPC, the Magistrate is required to look into the material, and evidence collected by the police, and, he cannot consider the allegations in the protest petition. The learned Magistrate, in his order, has not pointed out any material or the evidence on consideration of which it can be said that the petitioners have committed the offence, as alleged, or otherwise. He has further submitted that the prosecution of the petitioners is malicious, with ulterior purpose, with an aim to extort money and property from the petitioners and, therefore, this petition is liable to be allowed and the proceedings are liable to be quashed. The learned counsel for the petitioners has further submitted that no cause of action had arisen at Sitapur and, therefore, the impugned order passed by the Magistrate is otherwise without jurisdiction. The learned counsel has further submitted that from the facts of the case and own-admission of the complainant, the deceased was living at Ghaziabad when he was admitted at Kailash Hospital, and, thereafter, shifted to AIIMS, New Delhi where he died. Thus, if there was no cause of action, which had arisen at Sitapur, the impugned order passed by the learned Magistrate is wholly without jurisdiction, and is liable to be quashed on this ground alone.
32. On the other hand, respondent no. 2, who appears in person, and her counsel, have repeated the allegations in the protest petition, and said that the deceased was murdered by the petitioners and, therefore, this petition is liable to be dismissed.
33. I have considered the submissions advanced on behalf of the parties carefully, and the record of the petition.
34. The facts, which are not in dispute, are that the deceased, before he got admitted in Kailash Hospital, was living in Ghaziabad with the respondent no. 2. The deceased was admitted in Kailash Hospital for his ailment and, from there he was shifted to AIIMS, New Delhi on 14.07.2009 where he died on 10.10.2019. Thus, no cause of action has arisen, in respect of death of the deceased, at Sitapur. The learned Magistrate has, however, assumed the territorial jurisdiction by ordering for registration of the FIR, rejecting the police report, and taking cognizance for the offence against the accused under Sections 190(1)(b) CrPC. It is also not in dispute that the police, after investigating the offence, had submitted the final report as there was overwhelming evidence to state that the death of the deceased occurred for natural causes as he was suffering from Subacute Sclerosing Panencephalitis (SSPE). No evidence was found by the police of administering poison etc. by the petitioners. The deceased was son of the petitioner Nos. 1 and 2, younger brother of the petitioner no. 3, brother-in-law (Dever) of the petitioner no. 4, brother-in-law (Sala) of the petitioner no. 5 and brother of petitioner no. 6. No evidence could come in investigation to the effect that there was any motive to commit murder, as alleged by the respondent no. 2. Three reports have been discarded by the learned Magistrate while taking cognizance under Sections 190(1)(b) CrPC.
35. It is well settled that in case final/closure report is filed under Section 173(2) CrPC, stating that no offence is made out against the accused, the learned Magistrate may adopt any of the three following courses:-
(a) he may accept the report and in that case proceedings would stand closed; or
(b) he may reject the conclusion in the report that no offence is made out and take cognizance in the matter on the basis of material and evidence available with the police report; or
(c) he may order further investigation.
36. Thus, upon receipt of report under Section 173(2) CrPC, the Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) CrPC even if the police report is to the effect that no case is made out against the accused. The Magistrate is required to apply his judicial mind while taking into account the statements of witnesses recorded by investigating officer and other evidence/material records collected by the police during the investigation. After considering the evidence and material available with the police report, the Magistrate can very well ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts, emerging out from the investigation and take cognizance of the case in exercise of power under Section 190(1)(b) CrPC. However, what is to be considered by the Magistrate is the evidence and material available with the police report. In the present case, there is no material or any evidence which suggests commission of offence by the accused for which the Magistrate has taken cognizance. The evidence overwhelming suggests that the deceased died because of natural causes.
37. There is another aspect of the matter that the respondent no. 2 has specifically agreed before the Mediation and Conciliation Center of this Court in terms of the agreement arrived at between the parties that she would withdraw the prosecution of all the cases instituted/lodged by her. The agreement has been acted upon by the petitioners. Despite having agreed, the respondent no. 2 has vehemently opposed the petition which itself throws some light on the motive of the respondent no. 2 for prosecuting the petitioners.
38. In view of the foregoing discussions, this Court is of the view that the learned Magistrate did not have the territorial jurisdiction to entertain the complaint under Section 156(3) CrPC, and pass impugned order inasmuch as no cause of action had arisen within his territorial jurisdiction. Secondly, there is no evidence on record to suggest that the material and evidence, collected by the police, does disclose commission of any offence by the petitioners.The Magistrate in his order has not pointed out the material and evidence available with the police report to suggest the commission of the offence by the petitioners. The impugned order has been passed without application of judicial mind by the learned Magistrate.
39. Thus, this petition is allowed. Consequently, Misc. Case No.105/2010 (Smt. Rashmi Agarwal Vs. Gopal Das and others) under Sections 302/Section120-B IPC, including the impugned orders dated 03.07.2013 and 03.08.2013 passed by the Chief Judicial Magistrate, Sitapur, and impugned order dated 03.08.2013, issuing non-bailable warrants against the petitioners, are hereby quashed.
[Dinesh Kumar Singh,J.]
Order Date :- 26th November, 2019