RAVINDRA SINGH,N.A.MOONIS,J - (1.) HEARD Sri V.C. Mishra, Senior Advocate assisted by Sri Veer Singh, learned Counsel for the petitioners, learned A.G.A. for the State of U.P. and Sri R.P.S. Chauhan, appearing on behalf of the com­plainant. This petition has been filed by the peti­tioners Sanjay Saraswat and Manoj Kumar Gupta with a prayer; (i) to, "issue a writ, order or direction in the nature of mandamus com­manding the respondents to all Sri Dr. Krishna Pal Singh and his wife Smt. Nasreen Singh staff nurse and prosecute them for the offence un­der section 182/304, IPC and effect­ing they are arrest for the same and submitted the charge-sheet to the said effect. (ii) and to issue a writ, order or direc­tion in the nature of mandamus commanding the respondents to make a proper application under section 321, Cr.P.C. as per observa­tion made by Hon'ble Mr. Justice A.K. Roopanwal in its judgement contained as Annexure No. 5 dated 17.9.2007".
(2.) THE facts in brief of this case are that one Krishna Pal Singh lodged the FIR against the petitioners on 26.7.1994 at P.S. Civil Lines, Badaun in Case Crime No. 438 of 1994 under section 307, IPC alleging therein that at about 10.45 P.M. on 26.7.1994 the first informant along with his wife Smt. Nasreen Singh and younger brother Ratibhan Singh were sitting in the courtyard of their house, all of sudden the petitioners along with one unknown person came there on a bullet motorcycle, the peti­tioner Sanjay Saraswat discharged a shot towards the Ratibhan Singh who sustained gun shot injury, the injured Ratibhan Singh was medically examined on 26.7.1994 at 11.45 P.M. at District Hospital Badaun. Ac­cording to the medical examination report he had sustained one gun shot wound of entry on the left thigh. The injury was having blackening also subsequently the injured succumbed to his injury, thereafter the case was converted under section 302, IPC. The matter was investigated by the local police and the final report was sub­mitted in favour of the accused persons, but the final report was rejected by learned Chief Judicial Magistrate, Badaun and the order of re-investigation was passed on 13.5.1998, thereafter charge sheet against the petitioners was submitted by the I.O., but before submission of the charge sheet the petitioner Manoj Kumar Gupta was arrested by the police subsequently he was released on bail by the Court but the peti­tioner Sanjay Saraswat was absconding. On the basis of the charge sheet dated 16.10.1999 submitted by the I.O. the learned Chief Judicial Magistrate, Badaun has taken the cognizance vide order dated 21.2.2000, the charge sheet was challenged by the petitioner No. 1 by way of filing the Criminal Misc. Application No. 2116 of 2000 which has been dismissed on 17.5.2000, thereafter without obtaining the permission from the Court concerned, the Government of Uttar Pradesh entrusted the further investigation of this case to C.B.C.I.D. vide letter No. 126mm/6-12-2000-9(43)(D)/2000 dated 26.4.2000. There­after the enquiry report dated 29.1.2002 has been submitted in the Court of learned C.J.M. concerned mentioning therein that the first informant Dr. K.P. Singh and Smt. Nasreen Singh have committed the alleged offence punishable under section 182/304, IPC, thereafter another report has been submitted of the same affect in addition to it that petitioners have been falsely impli­cated in the present case, such report of further investigation dated 19.2.2008 was submitted in the Court of learned Addl. Session Judge/F.T.C. Court No. 5 Badaun on 20.2.2008 where S.T. No. 990 of 2006 against the petitioner Manoj Kumar Gupta was pending. It was mentioned in the re­port of the further investigation that no credible evidence could be collected against the petitioners regarding their participation in the commission of the alleged offence. On its basis the Government of Uttar Pradesh has decided to withdraw the prosecution of the petitioners, in pursuance of such Government's letter dated 6.2.2003 an application was moved by the Public Prosecutor under section 321, Cr.P.C. for withdrawing the prosecution of the peti­tioners in the Court of learned C.J.M., Badaun, the same was dismissed on 30.6.2003. It was challenged in the Revi-sional Court by way of filing the Criminal Revision No. 222 of 2003, which was dis­missed by Special Judge (D.A.A.), Badaun on 26.8.2006. The above mentioned orders dated 30.6.2003 and 26.8.2006 were chal­lenged before this Court by way of filing the Criminal Misc. Writ Petition No. 13465 of 2006, the same has been dismissed on 17.9.2007. On other hand Krishna Pal Singh and Smt. Nasreen Singh have challenged the order of investigation entrusted to the C.B.C.I.D. and its report that the material constituting the offence under section 182/304 IPC has been collected, its charge sheet is ready against the first informant Krishna Pal Singh and his wife Nasreen Singh and the letter dated 23.8.2003 sent to Officer Incharge of P.S. Civil Line, Badaun for making their arrest by way of filing the criminal Misc. Writ Petition No. 5603 of 2003 in which the officers of C.B.C.I.D. have been directed not to harass the first informant Krishna Pal Singh and and his wife.
(3.) IT is contended by learned Counsel for the petitioners that the petitioners are innocent, they have not committed the al­leged offence, even after investigation the I.O. came to the conclusion that the peti­tioners have been falsely implicated, so the final report has been submitted but without any proper reason it has been rejected by the C.J.M., Badaun and order of the re-investigation has been passed. The order of re-investigation is not permissible under the law. After re-investigation without col­lecting any cogent evidence the charge sheet has been submitted against the peti­tioners, on which the learned C.J.M., Badaun has taken the cognizance without applying the judicial mind. It is surprising that on such a charge sheet the case has been committed to the Court of Sessions against petitioner Manoj Kumar Gupta. The Government of U.P. was not satisfied with the investigation done by the civil police, therefore, its further Investigation was transferred to C.B.C.I.D. The C.B.C.I.D. came to the conclusion that the petitioners have been falsely implicated, in fact the offence was committed by Krishna Pal Singh and his wife Smt. Nasreen Singh and recommended for their arrest under section 182/304, IPC. On the basis of the report of C.B.C.I.D, ttye State of U.P. had decided to withdraw the prosecution of the petition­ers. Thus, application was moved in the Court of learned C.J.M., Badaun but the same was rejected on a technical ground. In such circumstances the prosecution of the petitioner is illegal and without any proper reason the first informant of- this case namely Krishna Pal Singh and his wife Smt. Nasreen Singh who have committed the alleged offence have not been arrested by the police and the charge sheet has not been submitted against them in the Court. Therefore, to meet the ends of justice, it is necessary that a suitable direction may be issued to the respondents to submit the charge sheet in the Court under section 182/304, IPC against Krishna Pal Singh and his wife Smt. Nasreen Singh and they may be prosecuted after making their arrest and the proceedings pending against the peti­tioners may be quashed and suitable direc­tion may be issued to the State Government to file a fresh application under section 321, Cr.P.C. before the Court concerned.;