Palok Basu - (1.) THIS is en application under Section 482 CrPC preferred by Reyasat Ali challenging the order of the Magistrate concerned summoning him and other accused under Section 307 IPC.
(2.) THE facts are that Mukesh Kumar lodged an FIR on 30-3-1989 saying that Sudesh who was in drunken state received fire-arm injuries with country-made-pistol which he was carrying stealthily which fired accidently. THE police thought it better to take the line as indicated in the said FIR and filed Final Report. However, Shyam Singh uncle of Sudesh and Mukesh made an application on 27-3-1989 to the police saying that the story narrated in the FIR by Mukesh was all false and wrong and that in reality three persons were responsible for committing the murder. It was followed up by a protest petition in so far as Shyam Singh is concerned but a final report so far police is concerned. But the magistrate issued notice as a result of which some materials were produced and on examining the Dying declaration, the materials collected during investigation as also affidavits filed, he was satisfied that case for taking cognizance of the offence under Section 302 IPC was made out. Consequently, he proceeded to pass the impugned order. Sri S. A. Shah vehementaly argued that applicant Reyasat Ali is not named in the dying declaration in as much as the FIR lodged by Mukesh Kumar did not mention any of the persons' named in dying declaration. He wanted to contend that later on the statement of Shyam Singh the other witnesses as well as the statement of deceased contained in the dying declaration should have been discarded because of the so-called averments made by Mukesh Kumar in his FIR. Sri S. P. S. Raghav learned Counsel for the opposite party argued that the Magistrate's order is just and proper and that a serious case has been attempted to be given a different colour for some other reasons.
(3.) SUFFICE it to say that the allegations as to the merits of the case can and should not be gone into at the stage when the cognizance has been taken and accused have only been examined. The Magistrate's observation relating to the dying declaration holding that the said statement of the deceased should be preferred to any other evidence for the purposes of summoning appears to be too appropriate to be interfered with. This application, therefore, fails. Sri Shah then argued that the applicant is prepared to voluntarily surrender and in case he is arrested and detained for long in jail, he will suffer loss, and in case he surrenders, his bail application may be directed to be considered expeditiously.;