- (1.) THIS is an application seeking recall of the order dated 28.9.2010 passed by Hon'ble Abdul Mateen, J. In support of application, an affidavit has been filed by Smt. Shanti @ Jhunka that Writ Petition No. 4500 (M/S) of 2013 was dismissed on 16.7.2013 on the ground that order dated 28.9.2010 be first corrected. Moreover, the order sought to be recalled was passed behind the back of petitioners. Some factual contentions have also been raised.
(2.) SUPPLEMENTARY affidavit has been filed by Smt. Shanti @ Jhunka stating therein that statement of Ram Shiromani Pandey under Section 161 Cr.P.C. was recorded wherein he is said to have named 09 persons as accused but he did not name Ganga Deen, Jhunka, Sita, Putta, Hansh Raj and Bhagauti Deen. It is stated that as an after thought, names were added and 'the fraud has been committed in the affidavit of Sadhu Ram'.
(3.) I have heard Sri Janardan Prasad, learned counsel for the applicants and Sri S.K. Singh, learned counsel for the respondent. Case has checkered history, which can be briefly stated as under: - An F.I.R. was registered under Sections 379, 352, 504, 506, 427 I.P.C. (Crime No. 274 of 1999) at Police Station Chanda, District Sultanpur on 14.12.1999 against 09 persons. After investigation, police submitted final report on 31.12.1999, against which protest petition was filed whereupon rejecting final report, 09 persons were summoned as accused. Against summoning order dated 4.7.2001, Criminal Revision No. 341 of 2001 filed before Additional District and Sessions Judge was dismissed on 17.10.2001. These two orders were challenged in Criminal Misc. Case No. 1627 of 2001 (under Section 482 Cr.P.C.), which was also dismissed on 7th March, 2003. Petitioners were, however, permitted to move application for discharge. On 6.11.2004, application moved for discharge by 09 accused persons was rejected by Additional Chief Judicial Magistrate. A revision against this very order being Criminal Revision No. 104 of 2004 was also dismissed. Thereafter, charges were framed and trial commenced. During trial, statements of PW -1 Ram Shiromani and PW -2 Sadhu Ram were recorded . On 29.6.2007 an application under Section 319 Cr.P.C. was moved for summoning additional persons as accused namely Ganga Deen, Jhunka, Sita, Putta, Hansh Raj and Bhagauti Deen. This application was rejected on 20.6.2008. Criminal Revision No.516 of 2008 against the said order was also rejected on 27.9.2008. However, these orders were challenged in Criminal Misc. Case No. 910 of 2009 (under Section 482 Cr.P.C.) by Ram Shiromani Pandey. This petition was allowed by Hon'ble Abdul Mateen, J. on 28.9.2010. Relevant extract of the judgment is being reproduced below: - "I have gone through the impugned orders and surprisingly find that both the courts below have ignored the above statement of PW -2 Sadhu Ram while rejecting the application under Section 319 Cr.P.C and the Criminal Revision filed by the petitioners. In this view of the matter, both the orders of the court below deserve to be set aside. The petition is accordingly allowed. Order dated 26.06.2008 passed in Case No. 374 -A of 2000 by the Additional Civil Judge (Junior Division)/Judicial Magistrate Court No. 20, Sultanpur relating to case crime no. 274 of 1999 under Sections 379, 427,352, 504 and 506 IPC of Police Station Chanda, district Sultanpur rejecting the application moved by the petitioner under Section 319 Cr.P.C. as well as order dated 27.09.2008 passed by Additional District and Sessions Judge (Court No. 3) Sultanpur in Criminal Revision No. 516 of 2008 are set aside. The Magistrate concerned is directed to expeditiously decide afresh the application of the petitioner under Section 319 Cr.P.C. after taking into consideration the statement of the prosecution witnesses.";