- (1.) HEARD Shri Naushad Siddiqui, holding brief of Shri Arvind Srivastava, the learned counsel appearing on behalf of applicant, Shri R. S. Tripathi, holding brief of Shri A. P. Tripathi, the learned counsel appearing on behalf of opposite party no.2, the learned AGA and perused the record.
(2.) THE present application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 25.9.2006, passed by learned Additional Sessions Judge/Fast Track Court No.2, Budaun, whereby the applicant has been summoned under Section 307/34, 504 IPC in Sessions Trial No.182 of 2004. The facts given rise to this petition is that the opposite party no.2 had lodged a first information report against four persons including the applicant on 14.12.2002 at about 5:15 am in respect of the incident occurred in the intervening night of 13/14.12.2002 at about 12:30 am, stating therein that when the complainant's brother was sleeping under thatched roof, the accused persons awaken him, as his brother saw them he tried to ran from the place. At this one of them had exhorted to fire at him and thereafter the accused persons had fired at his brother on account of which he sustained injuries. The incident had occurred on account of enmity as litigation is pending between them in respect of the landed property. On the registration of the first information report the police set in motion and investigated the case and submitted the charge sheet under Sections 504, 307 IPC against Jhau Singh, Sunil and Vijaypal. On the basis of which the cognizance was taken by the court below and the Session Trial No.182 of 2004 under Sections 307, 504 IPC was proceeded against the chargesheeted accused persons. During the course of trial an application was moved by the opposite party no.2 under Section 319 Cr.P.C. for summoning the applicant, as he was also involved in the offence, but the court below by order dated 15.7.2005 rejected the application after considering the statement recorded under Section 161 Cr.P.C. of the complainant and injured witness. Thereafter P.W.1, Gopal who is the injured witness and P.W.2, Lalaram, the complainant were examined before the court and after their examination an application was moved by the complainant to summon the applicant as there are sufficient evidence against the applicant about his complicity in the commission of the offence. On 30.6.2006 the said application was rejected on the ground that the injured and the complainant had not mentioned any specific role of the applicant in respect of firing at the injured, which creates doubt about the presence of the applicant at the time of the incident. The complainant-opposite party no.2 preferred a revision against the said order before this Court, and this Court while setting aside the order passed by the court below directed the trial court to decide the application of the revisionist-complainant under Section 319 Cr.P.C. again as the trial court had only considered the statement of the witness under Section 161 Cr.P.C. in deciding the application. Thereafter on 25.9.2006 the impugned order was passed by the court below. The court below has held that the complicity of the applicant is evident from the statement of the P.W.1, Gopal and P.W.2, Lalaram, who have given consistent statements that they were the eye witnesses regarding the presence of all the accused persons including the applicant and their examination and cross examination has also been completed. The name of the applicant was dropped by the Investigating Officer who was an Inspector in the U.P. Police and submitted the charge sheet against three persons. The injured had specifically stated that he got injured on the firing of the applicant by his gun. The other accused persons were having pistols. Thus on the basis of the statement of the injured and the complainant, the court below found prima facie offence is made against the applicant and as such passed the order summoning the applicant to face the trial.
(3.) THE applicant aggrieved by the aforesaid order, had preferred this petition, and this Court by order dated 6.11.2006 stayed the operation of the impugned order dated 25.9.2006. It is contended by the learned counsel for the applicant that, only on the basis of false and concocted story that the applicant and other accused persons have committed the alleged offence, the charge sheet was submitted only against three persons as the complicity of the applicant was not found to be true. THE learned court below has wrongly arrived at the conclusion that the prima facie case against the applicant is also made out, only when the order was passed by this Court on the application moved by the opposite party no.2 on 24.7.2006. THE power exercised by the court below under section 319 Cr.P.C. suffers from manifest error as after investigation no charge sheet was submitted against the applicant at the initial stage. When the statement of the witnesses and the injured were recorded, no specific role was assigned to the applicant and later on a story was developed before the trial court subsequently attributing the specific role to the applicant of firing upon the injured. Hence, the order passed against the applicant is liable to be quashed. In this regard the learned counsel has cited number of authorities of this Court as well of the Hon'ble Apex Court. THE reference of which are being given below :- (i)Hardeep Singh Vs. State of Punjab & others, 2009 (1) JIC 362 SC. (ii)Criminal Revision No.5643 of 2009, Akram & Others Vs. State of U.P. & Another. (iii)Sundarjas Kanyalal Bhathija & others Vs. THE Collector, Thane, Maharashtra, AIR 1990 S.C. 261. (iv)Brindaban Das & Ors. Vs. State of West Bengal 2009(1) JIC 486 SC. (v)Krishnappa Vs. State of Karnataka, 2005(1) JIC 107 S.C. (vi)Michael Machado & Another Vs. Central Bureau of Investigation & Another 2000(2) JIC 5 S.C. (vii)Rajol & Others Vs. State of U.P. & Another, 2010(2) JIC 920(All). (viii)Ram Kumar Mishra & Another Vs. State of U.P. & Another, 2010(3) JIC 782(All). On the basis of reliance made upon the aforesaid case laws it is further argued by the learned counsel for the applicant that the court below has failed to record his satisfaction to the fact that there is all likelihood that the accused-applicant is liable to be convicted and this question has also been referred to the larger bench by the Apex Court in the case of Hardeep Singh Vs. State of Punjab & others reported in 2009 (1) JIC 362 S.C. Per contra, the learned counsel appearing on behalf of opposite party no.2 has contended that from the perusal of the statement of the two material witnesses, the complainant and the injured, they have categorically stated about the involvement of the applicant in the commission of offence. The role of firing has been attributed to him. After investigation the charge sheet was submitted only against three persons against whom the trial proceeded and also ended in their conviction. The applicant cannot derive any benefit that he is liable to be exonerated as he was not charge sheeted by the police. The summoning order was passed long back in 2006 and the other accused persons have already been convicted. The applicant had moved an application under Section 401 Cr.P.C. for recalling the order dated 24.7.2006, whereby the Hon'ble Court had directed to pass a fresh order under Section 319 Cr.P.C. The said application was rejected on the ground that the applicant has no locus to challenge the said order as till that date he was not made an accused. The court below has recorded his satisfaction about the complicity of the applicant in the case after going through the statement of P.W.1 and P.W.2 and as such there is no illegality in the order passed by the court below in summoning the applicant exercising power under Section 319 Cr.P.C. The applicant has himself avoided the court proceeding by not appearing before the trial court, even though the cognizance order was passed against him on 25.9.2006, when the trial was proceeding against the other accused persons. The petition has no merit and deserves to be dismissed.;