- (1.) HEARD learned counsel for the applicants and learned A.G.A.
(2.) THE present petition under Section 482 Cr.P.C. was filed in this Court arraying the State of U.P., Sri Jiut Lal Nigam and the Chief Judicial Magistrate, Gorakhpur as opposite party nos. 1, 2 and 3 respectively, with the prayer that the charge sheet submitted in Criminal Case No. 8167 of 1993, arising out of Case Crime No. 226 of 1993, under Sections 392, 412 I.P.C., Police Station Barhalganj, District Gorakhpur against the applicants Bismillah Siddiqui and Arif Siddiqui be quashed. The facts briefly stated are that an F.I.R. was lodged on 14.5.1993 at 1.30 hours at the said police station by Jiut Lal Nigam stating that he was employed as salesman in the firm Jalan Synthetics Diwan Dayaram Geeta Press Road, Gorakhpur and he was on way to his place of residence from Barhalganj on a Suzuki motorcycle bearing No. 100-U.P. 5389. He had on 13.5.1993 gone to Barhalganj in connection with collection of money from certain persons, who were used to be given the material by firm on credit. When he reached a little ahead Madariya, 3-4 persons armed with country made pistols forcibly stopped his motorcycle by brandishing country made pistols, at about 10 O'clock in the night, took him to the nearby field and trussed him by a rope and then looted his bag containing the money and motorcycle and ran away from the place of occurrence with the looted bag and motorcycle. The miscreants were claimed to have been seen in the head light of the motorcycle. The F.I.R. of the incident was lodged next day on 14.5.1993 at 1.30 hours against unknown miscreants under Section 392 I.P.C. The complicity of the applicants came to light during investigation for the first time on 20.5.1993 and consequently they were rounded up on 20.5.1993 and subjected to search by the police. As per the recovery memo dated 20.5.1993, a police team headed by S.S.I. Ramesh Chandra Mishra was in search of the criminals wanted in robbery. When on 20.5.1993 at about 10.30 A.M. the police on an information reached the road near Barhalganj, then at about 11.00 A.M., both the accused persons were arrested by the police. They confessed to have looted the motorcycle and a sum of Rs.24,400/- from the complainant. On the personal search, a sum of Rs.4,045/- from the accused Arif Siddiqui and Rs. 1930/- from the accused Bismillah Siddiqui and two wrist watches were recovered. The details of the currency notes are given in the recovery memo. The faces of the accused persons were covered as they might be required for test identification parade warning them not to show their faces to anyone. The recovery memo was prepared.
(3.) AS per this petition, the applicants were detained by the police of police station Barhalganj on 14.5.1993 when they were proceeding on motorcycle from Ghosi. They were accosted by the police inside the police station. When the applicants were detained, then the brother of the accused Bismillah Siddiqui sent a telegram to the Senior Superintendent of Police, Gorakhpur on 17.5.1993 intimating him about illegal detention and also expressing apprehension of their being nominated in some false case. On the application of the accused persons moved in the court of Chief Judicial Magistrate, Gorakhpur, the police submitted report stating that both the accused persons were challaned in the said crime under Sections 392, 411 I.P.C. as two goggles, one foreign wrist watch and Rs.5975/- were recovered from them. The accused persons were subsequently granted bail by the Magisterial court on 21.5.1993. Thereafter the accused persons claimed the return of the recovered items by way of moving application in the court and the court vide order dated 28.5.1993 directed for release of those items in favour of the accused persons. The detention of the applicants between 14.5.1993 to 20.5.1995 as per the petition, was illegal and inexplicable. AS per the petition, the holding of test identification parade of the applicants was necessary but the same was not held. This has not only prejudiced the applicants but they were deprived of an opportunity on which hinged the very foundation of the prosecution case. It has further been averred in the petition that the statements of Yaqub and complainant Jiut Lal recorded during investigation would reveal that they had neither named the applicants nor claimed to have recognized them. The applicants are said to have been falsely implicated. However, they claimed to have seen the culprits and they could recognize them if presented before them. In view of the this submission, the identification parade was imperative and the same having not been held, has resulted in denial of a significant opportunity to the applicants to purge themselves of the charges. It has also been averred in the petition that the applicants have been rounded up and booked in this case due to his hostility on communal lines. It is a case in which conviction of the applicants is a far cry and hence it would be sheer abuse of the process of the court, if the applicants are subjected to undergo the travails of the trial in the court of law as they had already suffered much ignominy on account of their nomination in this case and this Court can certainly redeem the applicants from further ignominy and infamy by quashing the charge sheet.;