Raj Mani Chauhan, J. - (1.) LEARNED Counsel for the petitioners files supplementary affidavit, which is taken on record.
(2.) HEARD learned Counsel for the petitioners and learned Additional Government Advocate for the State as well as perused the documents available on record. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the petitioners with the following prayers: (i) To quash the impugned order of non bailable order warrant dated 27.1.2010 passed in Case No. 545/09 -02 State v. Avadhesh and Anr. in Case Crime No. 58/2002, under Sections 323 IPC and 3(1)(x) SC/ST Act, P.S. Khodare, District Gonda. (ii) To quash the impugned charge -sheet No. 11/02, dated 30.4.2002, in case crime No. 58/2002, under Sections 323 IPC & 3(1)(x) SC/ST Act.
(3.) THE submission of learned Counsel for the petitioners is that the accused -petitioner No. 1 -Avadhesh Kumar had already filed a writ petition before this Hon'ble Court for quashing the First Information Report in which the Hon'ble Court was pleased to stay the arrest of the accused -petitioner No. 1 till filing of the charge -sheet. The Investigating Officer after investigation of the case filed charge -sheet against the accused on which the learned Magistrate has taken cognizance of the offence and issued summons but no summon was served to the accused -petitioner No. 1. The accused -petitioner No. 2 -Sonu was regularly attending the trial court but unfortunately on two dates he could not appear before the trial court on account of his illness and thereafter the court below passed issuance of non -bailable warrant against him. Learned Counsel further submits that as per allegations made in the First Information Report as well as in the statement of witness recorded by the Investigating Officer under Section 161 of the Code, there is no whisper against the accused that they had used the caste name of the complainant, therefore no offence under Section 3(1)(x) SC/ST Act is made out against the accused. Therefore, the charge -sheet filed by the Investigating Officer as well as the impugned summoning order passed by the learned Magistrate are liable to be quashed. Learned A.G.A. opposed the petition.;