N.N.Sharma, J. - (1.) -Both these revisions are directed against order dated 27.11.1984 recorded by Shri R.S. Tripathi, learned Sessions Judge, Fatehpur in Sessions -Trial No. 146 of 1983. State v. Shyam Behari and others.
(2.) It appears that revisionists along with 9 others were accused in the First Information Report lodged on 26.9.1982 at about 10.15 P.M. at Police Station Bindki, district Fatehpur by Shri Surya Prasad (P.W. 1) a practising Advocate. Annexure-1 to the counter-affidavit filed by informant shows that while he was sitting in his office, at about 9.00 P.M., the accused armed with lethal weapons, who were well known to the informant from before, stormed into his office on account of deep seated enmity to exterminate him and his family members; informant took cover when the shot was fired at him by Shyam Behari alias Munni his mother Smt. Girja Devi and Satendra, his cousin, ran inside the room to save him when Shyam Behari shot dead his mother and Ram Behari Revisionist shot at Satendra, his cousin. Rajan accused fired shot at Girdhar Prasad, his maternal uncle who sustained dangerous injuries. Shri Girdhar Prasad succumbed to the injuries subsequently as pointed out at the time of arguments. he occurrence was witnessed by the residents of the locality. Except the revisionists, all the other accused wele sent up; After recording examination-in-chief of P.W. 1 informant the accused revisionists were summoned on the application by learned Advocate for prosecution, impugned order. I have heard learned counsel for parties and perused the record.
(3.) Learned Advocate, for revisionists pointed out that the revisionists were not sent up by police and investigation, against them was dropped. The statements of Shri Jagdish Narain Sharma, M.L.A. and one I.A.S. Officer and others, recorded at the stage of investigation, were over-looked by the learned Sessions Judge although this evidence or alibi outweighed the evidence of prosecution. The statement of P.W. 1, who, has not been cross-examined, was not sufficient to counter balance the material collected by investigator which impelled him to drop the proceedings against the revisionists. There was no quantum of evidence prescribed to justify the summoning of an accused under section 319 of the code of criminal procedure code. There was no prima facie case against the revisionists to connect them with the crime; learned Sessions, Judge did not apply his judicial mind for considering whether or not there was ground for presuming the commission of crime by the revisionists. In this connection reliance was placed upon century Spinning and Manufacturing Co. Ltd. V. The state of Maharashtra1 which relates to an order of the court at the stage of the framing the charges. It was observed: It can not be said that the court at the stage of framing the charges has not apply its judicial mind for considering whether or not there is, it ground for presuming the: commission, of the offence by the, accused. Therefore framing the charges does substantially affect the, persons liberty and it can not be said that he court must automatically frame the charge merely because the prosecuting authorities relying on the documents reffered to an section 173 consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. Held that the trial court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court therefore was in error in reversing that order. Under such circumstances, there was no sufficient ground for proceeding atleast against revisionists. I have carefully considered all these contentions.;