- (1.) HEARD Sri H.G.S.Parihar, Senior Advocate assisted by Sri Shashank Shekhar Parihar, learned counsel for the petitioners, Sri Jyotindra Mishra, Senior Advocate assisted by Sri Vaibhav Kallia learned counsel for respondents and learned AGA for the State.
(2.) THIS petition under Section 482 Cr.P.C. has been filed by Monu alias Vaibhav Singh, Ajit Singh, Rana Pratap Singh and Vijai Pratap Singh alias Tirpan Singh for quashing the order dated 30.04.2013 passed by Chief Judicial Magistrate, Gonda in Case No. 883 of 2013 (Dr. Rajesh Pandey vs. Deceased Sonu alias Gaurav Singh and others ) and order dated 25.06.2013 passed by the Incharge Session Judge, Gonda in Crl. Revision No. 335 of 2013 (Monu alias Vaibhav Singh and others vs. State of U.P. and Ors.).
(3.) FROM perusal of the record, it is evident that a first information report was registered, on a written report dated 9.5.2012 of Dr. Rajesh Kumar Pandey at Police Station - Kotwali Nagar, District - Gonda on 15.05.2012, in which one Sonu Singh was named as accused and it was mentioned that five -six unknown persons were with him. This case was registered as case crime no.559 -A of 2012 under Section -147/148/149/307/504/506 and 427 IPC. During investigation, some intense legal battle was fought in the court room and a final report was submitted by the Investigating Officer on 10.01.2013, which is annexed as Annexure 11 of this petition. A protest petition was filed by the complainant and after hearing the complainant and after perusal of the case diary, Chief Judicial Magistrate took cognizance of the offence under Section 190(1)(b) of Code of Criminal Procedure and summoned Monu alias Vaibhav Singh, Ajit Singh, Rana Pratap Singh and Vijai Pratap Singh alias Tirpan Singh (all petitioners in this petition) to face trial under Section 147/148/149/307/326/427/504/506 IPC. Feeling aggrieved, a Criminal Revision No.335 of 2013 was filed by the petitioners, which was rejected by the Incharge, Sessions Judge, Gonda vide order dated 25.06.2013. Feeling aggrieved, this petition under Section 482 Cr.P.C. was filed. It was submitted by learned counsel for the petitioner that: - (i) the learned C.J.M. has taken cognizance on the basis of the protest application filed by the informant, in which he has made request to summon 8 alleged accused for trial in Case Crime No.559 -A/2012, under -Sections 147, 148,149, 307, 326, 427, 504, 506 IPC and four accused have been summoned. The protest application is in form of complaint for summoning accused, who were not mentioned in the column of accused during the investigation as such the learned magistrate ought to have adopted procedure for taking cognizance on the complaint or he ought to have referred to matter for re -investigation/further investigation. (ii) The learned Magistrate has considered the material collected by the investigating officer Sri Yogendra Nath Singh, against whom complaint was made and he was not found conducting investigation properly and in fair manner, and vide order dated 29.12.2012 passed by the Superintendent of Police Gonda, the investigation was transferred to Sri Lallu Ram Diwakar, S.H.O. Colonelganj, Gonda and the writ petition no.342 M/B of 2012 was filed by Dr. R.K.Pandey (Opposite Party no.2) which was dismissed by this Hon'ble High Court vide order dated 15.01.2013. (iii) Sri Lallu Ram Diwakar had conducted investigation and recorded statement of no. of witnesses and also did spot inspection and collected material which show that prima facie allegation made by the informant were not found correct but the learned C.J.M. has discarded the material collected by Sri L.R. Diwakar for no rhyme and reason and held that it will be proved by the parties during trial. (iv) The learned C.J.M. has not applied its mind properly and discarded the material available in the case diary without recording any dissatisfaction, which was favouring the petitioner.;