RAVINDRA SINGH, J. - (1.) HEARD Sri Indra Mani Tripathi, learned Counsel for the applicant and the learned A.G.A.
(2.) THIS application has been filed by the applicant Amar Nath alias Pintoo Baba with a prayer to quash the order dated 10.2.2010 passed by the learned C.J.M. Siddharth Nagar in criminal case No. 1114 of 2002 arising out of police report submit ­ted in case crime No. 35 of 2002 under sec ­tions 120-B read with section 394/3021.P.C. P.S. Basi district Siddharth Nagar and to quash the proceedings of the above men ­tioned case pending in the Court of learned C.J.M. Siddharth Nagar. The fact in brief of this case are that the F.I.R. of this case has been lodged by Shiv Kumar Soni under sections 394/302 I.P.C. against 3 unknown miscreants on 10.1.2002 at 1.25 P.M. in respect of the inci ­dent allegedly occurred on 10.1.2002 at about 9.30 p.m. alleging therein that the deceased Manoj Kumar was having a shop of Jewellery after closing the shop on 10.1.2009, at about 9.30 p.m. he along with his son Durgesh left the shop, the deceased was having three bags, when they reached at a short distance from the shop two mis ­creants came from the back side and caught the neck of the deceased and they started beating the son of the deceased namely Durgesh who called one Ashok to rescue his father. The miscreant caused the gun shot injury on the bag which was on the shoulder of the deceased and ran from the place of occurrence, they got lift from the third miscreants who was also standing near the motor cycle and with that motor ­cycle all the three miscreants riding on the motorcycle fled away. The deceased in an injured condition along with two bags hav ­ing the jewellery was taken to his house and he was taken to the Basi Hospital where he succumbed to their injuries. The inquest report was prepared on 10.1.2002 from 11.34 p.m. to 7.30 a.m. on 11.1.2002 the post-mortem examination was con ­ducted and on 11.1.2002. According to the post-mortem examination report the cause of death was due to hemorrhage and shock as a result of ante mortem injuries. The deceased sustained injuries on front left side of chest, after spot inspection the site plan was prepared on 11.1.2002. Dijring investigation the name of the applicant and the co-accused Kundan Maurya came to light and the charge-sheet dated 29.4.2002 has been submitted against the applicant under section, 120-B read with sections 394/302 I.P.C. on which the learned C.J.M. Siddharth Nagar has taken cognizance on 14.5.2002, the applicant was arrested on 26.2.2002, thereafter the applicant was released on bail by the High Court, in pursuance of the order he has been released from jail on 1.6.2002 but on account of his non-appearance N.B.W. and process under sections 82-83 Cr.P.C. was. issued on 10.2.2010 and separate misc. pro ­ceedings was registered, against the sure ­ties and the notice was issued to them un ­der section 446 Cr.P.C. The proceedings of committal to the Court of sessions were pending before the C.J.M Siddharth Nagar. The applicant was directed to appear before the Court concerned but he did not appear before the Court concerned before passing the order dated 10.2.2010, N.B.W. was also issued against the applicant. The applicant has challenged the order dated 10.2.2010 passed by the C.J.M. Siddharth Nagar by way of filing the present petition. The pro ­ceedings pending against the C.J.M. Siddharth Nagar have already been chal ­lenged in the present application, it is sub ­mitted by the learned Counsel for the ap ­plicant that in the present case the appli ­cant is not named in the F.I.R. The appli ­cant and O.P. No. 2 Shiv Kumar Soni are residing in the same locality, they are hav ­ing their business shop also at a short dis ­tance. During investigation the statement of the witnesses namely Shiv Kumar Soni, Durgesh Kumar, Smt. Meena (wife of the deceased) Sri Chand Verma were recorded on 10.1.2002 and 12.1.2002 under section 161 Cr.P.C. they have not made allegation against the applicant but in the present case a business man was killed, therefore, public and political persons, businessman made hue and cry and under such pressure the I.O. has made an application against the accused only to say that a case has been worked out by the police. The applicant was having love affairs with a Muslim Girl namely Khyshnama alias khshbu, her ma ­ternal uncle Dr. Abdul Wahab become en ­emy of the applicant, he is an influential persons, under his influence the I.O. re ­corded the statement of Ramji, Kallu, Shiv Kumar, Sanjay and Ram Babu on 17.2.2002 under section 161 Cr.P.C. even according to their statement the involvement of the ap ­plicant is not established. The co-accused Kundan Maurya had died in a police en ­counter in the night of 12/13.2.2002 then the I.O. moved an application on 23.2.2002, 5.4.2002, 1.5.2002 in the Court concerned for taking remand of the applicant, the ap ­plicant was remanded to the police custody but in the last parcha dated 29.4.2002 the charge-sheet has been submitted on ' 27.7.2002, after the submission of the charge-sheet, fuhrer investigation was done its the closure report was submitted on 27.7.2020.
(3.) THAT in the present case even on the basis of the material collected by the I.O. no offence under sections 120-B read with 394/302 I.P.C. is made out against the applicant, the learned C.J.M. Siddharth Nagar has taken cognizance without apply ­ing the judicial mind and without perusing the record the impugned order dated 10.2.2010 has been passed issuing N.B.W. and process under sections 82-83 Cr.P.C. against the applicant registering a case against the sureties. In case the applicant is prosecuted the applicant shall suffer ir ­reparable loss including the order dated 10.2.2010 passed by the C.J.M. Siddharth Nagar.;