SHRI NARAYAN SHUKLA, J. - (1.) - Heard Mr. Arvind Kumar along with Mr. Vijai Kumar Rai, learned Counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate.
(2.) THE petitioner has challenged the judgment and order dated 25.11.2011 passed by the Additional Special Judge (Gangster Act), Lucknow in Case No. 65-A of 2005 arising out of Case Crime No. 26 of 2005, Police Station Kotwali Dehat, district Hardoi. THE main ground of challenge is that to constitute the offence committed by the petitioner under section 120-B of Indian Penal Code, no ingredients of section 120-B IPC are available. The learned Counsel for the petitioner submits that the investigation report does not indicate any meeting of petitioner's mind to commit the offence. Thus the conspiracy on part of the petitioner in commission of offence alleged is not established. Moreso, the arms which are said to have been used in commission of offence have not been examined, despite production of the same by the petitioner before the Investigating Officer. In support of his submission he cited the following decisions: 1. Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another.1 1. 2004 (Suppl.) ACC 533 (SC). 2. Saju v. State of Kerala,2 3. State of Kerala v. P. Sugathan and another.3 4.Sukhram v. State of Maharashtra.4 So far as the order impugned passed by the Court below in exercise of power provided under section 227 of Code of Criminal Procedure is concerned, it is stated that once the Investigation Report does not establish any offence committed by the petitioner, it is not necessary to compel the petitioner to undergo trial. the petitioner has also challenged the finding recorded by the learned Court below with the submission that as soon as she received notice issued by the District Magistrate to provide those arms for examination, immediately she provided those arms without committing any delay, but till filing of the police report they had not been examined and until and unless arms are examined those cannot be connected with the offence, therefore, the charge- sheet filed against the petitioner for commission of offence under sections 147, 148, 149, 307, 302 and 120-B of the Indian Penal Code is wholly baseless and unfounded. It is further stated that the statement of witnesses recorded during the course of investigation do not connect the petitioner with the offence and those are also not corroborated with other evidences therefore, those are no evidence in the eye of law against the petitioner. In support of his submission he cited following decisions: 1. Union of India v. Prafulla Kumar Samal and another.5 2. Niranjan Singh Karam Singh Punjabi Advocate v. Jitendra Bhimraj Bijja and others.6 3. P. Vijayan v. State of Kerala and another.7 2. AIR 2001 SC 175. 3. 2000(41) ACC 932 (SC). 4. 2007 (59) ACC 534 (SC) = 2007 (57) AIC 90 (SC). 5. AIR 1979 SC 366. 6. AIR 1990 SC 1962. 7. 2010 (68) ACC 744 (SC) = 2010 (87) AIC 167 (SC). 4. State of Bihar v. Ramesh Singh. 1 5. Alamohan Das and others v. State of West Bengal. 2 6. State of Karnataka v. L. Muniswamy and others.3 7. State of Madhya Pradesh v. Mohan Lal Soni.4 8. Vijayan alias Rajan v. State of Kerala,5 9. Sanjeev Kumar etc. v. State of Himachal Pradesh, 6 10. Shyam Singh and others v. State of U.P. and another.7 11. Naresh v. State of U.P. and another passed by this Court, on 26.8.2011 in Criminal Revision No. 512 of 2010.
(3.) THIS Court had an occasion to deal with the same question who has involved in the present case. In the case of Manna Lal Gupta v. State of U.P. and another,8 this Court has held that at the stage of consideration of discharge application under section 227 of the Code of Criminal Procedure, the learned Magistrate/Judge has to satisfy himself on the point as to whether there is sufficient ground for proceeding against accused or not without proceeding for any roving enquiry as the same is impossible at this stage as has been held by Hon'ble Supreme Court in the case of State of Orissa v. Devendra Kumar Padhi, 9;