- (1.) VINOD Prasad, J. Both the above criminal miscellaneous applications have been filed by Shiv Ganesh Gautam and because the order passed in the former criminal miscellaneous application No. 6911 of 2007 will have bearing on the latter criminal miscellaneous application No. 12322 of 2007 and hence both the above applications are being disposed off by this common order.
(2.) SHIV Ganesh Gautam presently posted as Sub-Inspector of Police, District Chandauli has prayed for quashing of the order dated 14-2-2007 passed by Additional Sessions Judge, Fast Track Court, No. 1, Azamgarh in Sessions Trial No. 219 of 2005, State v. Bhagwan, for offences under Sections 302/120-B, I. P. C. through Criminal Miscellaneous Application No. 6911 of 2007. By the aforesaid order the trial Court has summoned the applicant under Section 319 Cr. P. C. to stand trial alongwith other accused persons, who were already being tried by it. In the aforesaid criminal miscellaneous application a counter-affidavit was called for on 3-4-2007, which has been filed by Dadhibal Tiwari, Station Officer, Atarauliya through learned A. G. A. to which a rejoinder affidavit has also been filed by the applicant. During the pendency of the former Criminal Misc. Application No. 6911 of 2007 non-bailable warrant, proclamation under Section 82 Cr. P. C. and attachment has been issued against the applicant consequently he filed subsequent Criminal Miscellaneous Application No. 12322 of 2007 with the prayer that the order of proclamation and attachment under Sections 82 and 83 Cr. P. C. dated 17-5-2007 passed in the aforesaid Session's trial be also quashed. The factual matrix, which has generated the present two applications are that on 2-7-2004 at 10. 30 a. m. informant Balram Yadav was returning back to his house accompanied by his uncle Chhabilal, elder brother Bajrangi and his younger brother after ploughing his field by his tractor and when he reached near the field of Balli Singh, accused persons including two sets of siblings Bhagwan Singh, Chandradev Singh both sons of Awadh Bihari, Siyaram and Jairam both sons of Vansh Lochan and Hawaldar sons of Basdev armed with rifle, bomb and gun appeared at the spot and because of the harboured previous animosity started indiscriminate firing from their respective weapons and also hurled the bombs. Assailant Siyaram shot at Chhabilal on his face and chest and Bhagwan Singh shot at Vishwanath on his chest. Both the above persons died on the spot instantaneously. Informant and his brother were also fired at but they sheltered themselves behind the tractor and escaped unhurt. This incident was witnessed by the informant, his brother, and also by Shiv Sagar Yadav, Jai Sagar Yadav and other co- villagers. Because of hurling of bomb and indiscriminate shooting a lot of commotion occurred at the spot. It was alleged that the incident was executed in conspiracy with the present applicant Shiv Ganesh Gautam. Informant lodged the F. I. R. of the said incident at police station Atarauliya, District Azamgarh on the same day at 7. 20 p. m.
(3.) THE police started the investigation and charge-sheeted Chandrodey, Jairam Singh, Hawaldar Singh and Surya Nath Singh. Finding no case against the applicant the Investigating Officer did not charge- sheet the applicant. Charge-sheeted accused were committed to the Court of Sessions for trial vide S. T. No. 219 of 2005, State v. Bhagwan Singh and Ors. , before Sessions Judge, Azamgarh who framed charges against them inter alia under Section 302 IPC on 29-1-2005.;