- (1.) K. N. Ojha, J. Heard Sri R. C. Srivastava, learned Counsel for the applicant Jamal Akhtar @ Babu Khan, learned AGA and have gone through the record.
(2.) INSTANT application under Section 482 Cr. P. C. has been moved to set aside order dated 28-7-2005 passed by learned Special Judge/fast Track Court No. 2, Varanasi, in ST No. 541 of 2004, State v. Jamal Akhtar @ Babu Khan, whereby a direction was made to frame charges under Sections 147, 148, 149, 326, 307, 120-B IPC and Section 7 Criminal Law Amendment Act, police station Sigra, district Varanasi. The learned Counsel for the applicant has filed Annexure No. 1, which is copy of F. I. R. of crime No. 187 of 2004, under Sections 307, 120-B, 506 IPC. This F. I. R. was lodged by one Nishar Ahmad at police station Sigra, district Varanasi, on 5-6-2004 at 9. 10. a. m. in respect of the occurrence of the same day, which had taken place at about 8. 30 a. m. In the F. I. R. the name of Babu Khan of Bhadohi was mentioned. It was also mentioned that three unknown persons were also accompanying Babu Khan, who caused fire-arm injuries to Mabood Khan. In the body of the F. I. R. it was written that three or four boys armed with fire-arm entered into the Hotel and injuries were caused by Babu Khan. Mabood Khan was brought to hospital where his condition was found serious. After investigation charge-sheet has been submitted against the applicant and one other person. It has not been specified whether the investigation is pending against other accused or it has been concluded. The learned Counsel for the applicant submits that in the F. I. R. only 3 or 4 persons are said to have entered into the Hotel and injury is said to have been caused to the Proprietor of the Hotel in furtherance of their common intention, therefore, the charge under Sections 147, 148 and 149 cannot be framed against the applicants. A perusal of the charge-sheet, which is at Annexure No. 3, shows that during investigation it was found that one Qualis Car No. UP 06a/25 was used in which one driver was sitting and another person was standing at the gate for protection of the Car and the miscreants, who had entered into the Hotel. F. I. R. also shows that according to the Proprietor of the Hotel the whole plan was got prepared by his elder son as there is dispute of property in the family. In the charge-sheet, which has been submitted, it is specifically mentioned that during investigation it was found that there were six persons outside and inside the Hotel in committing the offence. Thus, when after investigation it was found that on the spot there were six persons, the charge under Sections 147, 148 and 149 IPC was framed. If a person is injured and the witnesses, who were inside the Hotel, could see only three or four persons who were inside the Hotel, it does not mean that there were only three or four miscreants. Only after investigation it can be ascertained that some other persons had also participated in the commission of the crime or not. In the investigation it was found that there was one qualis car, one driver was sitting in it and another person was standing at the gate to protect the car and the miscreants, who were inside the Hotel. In the F. I. R. it is alleged that three or four miscreants were inside the Hotel, who were seen by the victim and the witnesses. After investigation it was found that some other persons were also members of the unlawful assembly and in furtherance of the common object the offence was committed. These persons cannot be excluded even if they did not appear on the spot or were sitting in the car or standing at the gate. In such circumstances, if charge under Sections 147, 148 and 149 IPC has been framed, there is no illegality in it.
(3.) LEARNED Counsel for the applicant has cited 1993 JIC 545 (SC), Subran @ Subramanian & Ors. v. State of Kerala, wherein it has been held by Hon'ble the Apex Court that if at the time of final judgment it is found that all the members against whom charge has been framed did not participate in the commission of the offence and if charges is framed against six persons and it is found that out of them two were not involved in the commission of the offence, the charge cannot be said to be proved under Section 147 IPC. It is the stage when the judgment is delivered and indepth appreciation of evidence is to be made. At the stage when charge-sheet is submitted or charge is being framed the prosecution evidence, is to be prima facie considered. Learned Counsel for the applicant further submits that at the time of framing charge the evidence, which is collected during the investigation is not to be seen. There is no substance in the contention of the applicants. It is further submitted that while submitting charge-sheet the Investigating Officer clearly mentioned that the evidence could be collected only against two persons including the applicant and credible evidence could not be obtained against other persons, who participated in the commission of the crime. When there is specific case of the prosecution that there were six persons present on the spot credible evidence could not be made available to the Investigation officer due to this reason the charge-sheet has not been submitted again them. If against those accused persons charge-sheet could not be submitted, it does not mean that they were not the members of the unlawful assembly. Therefore, it cannot be held that the applicant was not the member of the unlawful assembly.;