- (1.) SHIV Charan, J. The present application has been moved under section 482 Cr. P. C. for quashing the order dated 1. 9. 2007 passed by Addl. Sessions Judge/ftc No. 3 Basti in S. T. No. 207 of 2007 under sections 302, 323, 504 and 506 IPC State v. Ram Vijai and others. By this order learned Sessions Judge framed the charge against the accused-applicant for the offence under section 302 IPC.
(2.) THE perusal of the file shows that on 5. 2. 2006 Mahendra Prasad Tiwari complainant lodged a FIR against the applicants Dinesh Tiwari, Sadhu Saran and Ram Vijai Yadav for the offence under sections 302, 323, 504 and 506 IPC. P. S. Mahuli District Sant Kabir Nagar. It was registered at Crime No. 84 of 2006. It was alleged in the FIR that the applicant along with Sadhu Saran committed murder of Arvind Kumar Tiwari son of the complainant. It has also been alleged in the FIR that about two and half years earlier applicant Dinesh Tiwari kidnapped and enticed his daughter Seema. But nothing was done in this matter and the applicant Dinesh Tiwari had been living with his daughter and he had been pressurizing him to accept him as his son in law. But complainant refused from doing it and hence he was inimical from him. For electrification of the village electric poles were fixed for last several days'. On 5. 2. 2006 at about 12 O'clock Dinesh Tiwari and his companion Sadhu Saran arrived at the field of the complainant. THE complainant with the consent of electric department filled up the pit dug for the electric pole. Dinesh Tiwari and his companions started abusing him for doing so. Ravi Shankar son of the complainant told them not to abuse them. On it both the accused persons took out country made pistol and Dinesh Tiwari caused injuries on his head by the butt of country made pistol and he sustained head injury. Ravi Shankar escaped from the spot and reached at his house. THEse accused persons chased him up to the house and the complainant with folded hand told to them not to beat him. On it Dinesh Tiwari threw the JANEOO' (sacred thread) and declared that he will not bear it till he will not eliminate all of them. THEn these accused persons rushed towards the house of the complainant. THE another son Arvind Kumar Tiwari was standing in the verandah both the accused persons opened fire on Arvind Kumar Tiwari and as a result of firing he died on the spot and after committing the murder, the accused persons escaped from the spot on motorcycle. THE accused persons were seen by the witnesses escaping from the spot. No witness is ready to give evidence due to fear. Investigation was started by the police of the offence. But afterwards the investigation was transferred to CBCID by the order of the Government. CBCID submitted charge sheet against Sadhu Saran Yadav co-accused for the offence under sections 302, 323, 504 and 506 IPC. And the CJM took the cognizance of the offence vide order dated 8. 5. 2006, and it was mentioned in the charge sheet that investigation shall continue against rest of the accused persons. The case was committed to the Court of Sessions of Sadhu Saran Yadav registered at S. T. No. 149 of 2006 State v. Sadhu Saran Yadav and Mahendra Prasad Tiwari was examined by Trial Court as P. W. I against Sadhu Saran Yadav. Afterwards CBCID submitted the charge sheet against Ram Vijai Yadav for the offence under sections 302, 323, 504 and 506 IPC. But the charge sheet was submitted against the applicant for the offence under sections 323, 504 and 506 IPC. The charge sheet was not submitted against the applicant for the offence under section 302 IPC. The cognizance was taken by CJM on charge sheet No. 5-A of 2006 on 23. 1. 2007. Bail was granted to the applicant for the offence under sections 323, 504, 506 IPC. The case was committed to the Court of Sessions by the CJM after taking cognizance and the charge was framed against the applicant also along with Ram Vijai Yadav without affording any opportunity to hear for the offence under section 302 IPC according to applicant and on the application of the complainant order was passed for taking the applicant into custody for the offence under section 302 IPC, I have heard learned Counsel for the applicant, learned AGA for the State and perused the entire material on record.
(3.) IT has been argued by learned Counsel for the applicant Sri Satish Trivedi that no charge sheet was submitted against the applicant for the offence under section 302 IPC. And no cognizance was taken by the Magistrate for the offence under section 302 IPC against the applicant. But learned Sessions Judge after committal framed the charge under section 302 IPC also. IT was specifically mentioned in the charge sheet that against the applicant charge sheet is submitted for the offence under sections 323, 504, 506 IPC. He argued that as the charge sheet against the applicant was submitted for non-cognizable offence hence it must have proceeded as a complaint case as provided in explanation of section 2-D of Cr. P. C. That all of a sudden learned Sessions Judge framed the charge under section 302 IPC and this is most unjustified on the part of the Sessions Judge. That the applicant has been deprived off from his valuable rights as has been provided under section 227 Cr. P. C. That entire procedure adopted by the Sessions Judge is faulty. The applicant was assured that he will be tried for the offence under sections 323, 504, 506 IPC. That for offence triable by Sessions Judge there should be proper compliance of section 207 Cr. P. C. That as prejudice has been caused to the applicant by the order of Sessions Judge by framing charge under section 302 IPC hence deserves to be set aside. Learned AGA opposed the argument of learned Counsel for the applicant and it has been argued that there is no illegality or apparent irregularity or procedural error in the order of the Sessions Judge of framing the charge under section 302 IPC. In the present case as the charge was framed after receipt of the file in the Sessions Court and the charge was not amended and on the basis of the material available on record the Sessions Judge was convinced that there are prima facie allegation against the applicant also for framing the charge for offence under section 302 IPC. He also argued that as the case of co-accused Sadhu Saran Yadav was committed to the Court of Sessions earlier and statement of complainant was recorded in the case and when the case of co-accused Dinesh Tiwari and Ram Vijai Yadav was committed to the Court of Sessions, hence learned Sessions Judge perused the entire evidence including the statement of complainant recorded in the case of Sadhu Saran Yadav and after perusing the evidence the charge was framed.;