Decided on September 11,2012

Shamim And Others Appellant
State of Uttarakhand and another Respondents


- (1.) Having heard learned counsel for the parties, it transpires that an FIR was lodged on 11.10.2011 against as many as nine persons for the offence under Section 147, 307, 323, 427 IPC in Police Station Bhagwanpur, Roorkee, District Haridwar. Out of these 9 persons, Abdul Subhan (applicant no. 3) was arrested on 11.10.2011 and remanded to judicial custody for the offences, as indicated above.
(2.) The Investigating Officer Mr. Atul Naithani moved an application on 19.10.2011 through Assistant Prosecuting Officer that no offence under Section 307 IPC has been found against accused Abdul Subhan, hence, he requested learned Magistrate to delete the said Section from the remand papers. Assistant Prosecuting Officer without expressing his opinion simply submitted the said application of Investigating Officer to the court. Learned Magistrate while considering the said application thought it fit, in the interest of justice, to summon the entire case diary for his perusal. After perusal of the evidence collected by Investigating Officer in the case diary, Magistrate passed an elaborate order dated 21.10.2011 whereby prayer made by the Investigating Officer was turned down and on the basis of all prosecution papers, case diary, spot map and medical report, was of the view that prayer made by the Investigating Officer is quite unjustified and she was not inclined to accede the same. She reiterated that offence under section 307 IPC against Abdul Subhan is made out. It is also pertinent to mention that when accused Abdul Subhan was remanded to judicial custody on 12.10.2011 for the offence under Section 147, 323, 427, 307 IPC, his bail application was rejected by the court.
(3.) Learned Magistrate also sent a copy of her order, rejecting the application of Investigating Officer, to the Senior Superintendent of Police, Haridwar. Feeling aggrieved with the said order of Magistrate dated 21.10.2011, this petition has been filed interalios by Abdul Subhan.;

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