Allahabad High Court
Ajay Kumar vs State Of U.P. on 7 February, 2014
Author: Ravindra Singh
Bench: Ravindra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 42 Criminal Misc. Application No. 36178 of 2008 ( Under section 482 Cr.P.C.) Ajay Kumar Versus State of U.P. Hon'ble Ravindra Singh,J.
Heard Sri Daya Shanker Misra, Sri Chandrakes Misra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Gaurav Kakkar, learned counsel for the complainant.
This application under section 482 Cr.P.C. has been filed by the applicant Ajay Kumar son of Naahar Singh with a prayer to quash the order dated 20.11.2008 passed by the learned Additional Sessions Judge, Court No. 4 Bulandshahar in S.T. No. 310 of 2006 whereby the applicant has been summoned in exercise of the power conferred under section 319 Cr.P.C. to face the proceedings of trial for the offence punishable under sections 147,148,307,323,324 and 504 I.P.C.
The facts in brief of this case are that FIR of this case has been lodged by Sri Narendra Singh son of Tej Pratap Singh in case crime no. 121 of 2005 under sections 147,148,323,324 and 504 I.P.C. in which the charge sheet has been submitted against Nahar Singh, Narpat Singh, Malkhan Singh, Manoj and Sanjay and final report was submitted in favour of the applicant and no charge sheet has been submitted against the applicant, on the basis of the charge sheet submitted by the I.O. learned Chief Judicial Magistrate, Bulandshahar has taken cognizance and summoned the charge-sheeted persons to face the trial in criminal case no. 3517 of 2005 and thereafter, it was committed to the court of Sessions where it was numbered as S.T.No. 310 of 2006, thereafter, on the basis of the application moved on behalf of Harveer Singh and three others in the court of learned Sessions Judge, Bulandshshar mentioning therein that its cross case S.T. No. 561 of 2006 was pending in the court of Additional Sessions Judge, Court No. 2 Bulandshshar, present case may also be transferred to the court of Additional Sessions Judge, Court No. 2 Bulandshshar. Ultimately, it was transferred to the court of Additional Sessions Judge, Court No. 2 Bulandshahar for framing the charge against the charge-sheeted persons on 13.11.2006, after framing of the charge examination in chief of P.W. 1 Narendra Singh was recorded on 22.2.2007, after recording the examination-in-chief, an application under section 319 Cr.P.C. was moved by the first informant Narendra Singh with the prayer to summon the applicant to face the trial, the same was rejected on 18.4.2007. The order dated 18.4.2007 passed by the learned Additional Sessions Judge, Court No. 2 Bulandshahar in S.T. No . 310 of 2006 was challenged before this court by way of filing criminal revision no. 1197 of 2007 by the first informant Narendra Singh, the same was disposed of on 10.9.2007 by affirming the order dated 18.4.2007 with a direction that it shall be open to the prosecution to move an application under section 319 Cr.P.C. after completion of the cross examination of the P.W. 1 or other evidence is adduced, the trial court was directed to hear and dispose of the same in accordance with the provisions of law. P.W. 1 Narendra Singh was cross examined, thereafter, the examination in chief and cross examination of P.W. 2 Harveer Singh was also recorded. Thereafter, fresh application under section 319 Cr.P.C. was moved by the first informant through A.D.G.C.( Criminal) with a prayer to summon the applicant to face the trial. During the pendency of the above mentioned application the Sessions Trial of the present case and its cross case was transferred to the court of Additional Sessions Court No. 4 Bulandshahar by the District Judge, Bulandshahar. The learned Additional Sessions Judge, Court No. 1 after considering the deposition of P.W. 1 and P.W. 2 passed the impugned order dated 20.11.2008 by which the application under section 319 Cr.P.C. was allowed and the applicant was summoned to face the trial.
The impugned order dated 20.11.2008 has been challenged by the applicant before this court by way of filing the present application under section 482 Cr.P.C.
It is contended by the learned counsel for the applicant :-
1.That in the present case on the basis of the examination-in-chief of P.W. 1 Narendra Singh, application under section 319 Cr.P.C. was moved, the same was dismissed by the trial court and the order of dismissal dated 18.4.2007 was challenged before this court by the first informant by filing a criminal revision no. 197 of 2007, the same was disposed of by holding that there was no illegality in the impugned order and by refusing the prayer for quashing the impugned order with a direction that it was open to the prosecution to move an application under section 319 Cr.P.C. After completion of the cross examination of P.W. 1 other evidence is adduced but the allegation made in the examination-in-chief have already been considered by the trial court as well as by this court, in such circumstances on the same allegation, made by P.W. 1 and P.W. 2 summoning the applicant in exercise of the power conferred under section 319 Cr.P.C. is illegal.
2.That learned Sessions Judge, Court No. 2 Bulandshshar, Sessions Trial of its cross case was also pending before the Additional Sessions Court No. 2 Bulandshshar, first application under section 319 Cr.P.C. was rejected by the Additional Sessions Judge, Court No. 2 Bulandshahar where the statement of P.W. 1 and P.W. 2 was recorded and fresh application under section 319 Cr.P.C. was moved, the same was pending before him, during the pendency of the application under section 319 Cr.P.C.an application under section 408 Cr.P.C. was moved in the court of Sessions Judge, Bulandshshar for transferring the sessions trial to other court, the same was allowed by the learned Sessions Judge, Bulandshahar on 4.9.2008. The order dated 4.9.2008 is illegal because this matter was partly heard by the Additional Sessions Judge, Court No.2 Bulandshaher even then the learned Sessions Judge, Bulandshahar transferred this case from his court to the court of Additional Sessions Judge, Court No. 4 Bulandshahar.
3.That after registering the case proper investigation was done by the I.O. and during investigation the I.O. collected the evidence that the applicant remained present in the office of Pashu Chikitsa Adhikari, Vikas Bhawan, Bulandshahar, on 16.6.2005 from 10.00 a.m. to 5.00 p.m. even then he was falsely implicated in the FIR in a mechanical manner, on the same allegation made in the FIR the applicant has been summoned by the trial court in exercise of the power conferred under section 319 Cr.P.C. even on the basis of the evidence adduced prima facie it does not appear that the applicant participated in the commission of the alleged offence, the applicant has been illegally summoned without following proper procedure whereas he is innocent even he was not present at the time of the commission of the alleged offence. The impugned order is illegal and the same may be set aside.
In reply of the above contention, it is submitted by learned A.G.A. and Sri Gaurav Kakkar, learned counsel for the complainant that the applicant was named in the FIR, his name was disclosed by the witnesses also during investigation but without doing the proper investigation the charge sheet was not submitted against him. At the stage of the trial after recording the examination-in-chief of P.W. 1 Narendra Singh the application under section 319 Cr.P.C. was moved, the same was dismissed on technical ground because it was moved prior cross examination of P.W. 1 Narendra Singh. The order dated 18.4.2007 rejecting the application under section 319 Cr.P.C. was challenged by the first informant Narendra Singh before this court by way of filing Criminal Revision No. 1197 of 2007, the same was disposed of without interfering in the order dated 18.04.2007 only on the ground that trial court had rightly rejected the application under section 319 Cr.P.C. because it was filed prior recording the examination-in-chief of P.W. 1. In view of the decision taken by the Supreme Court of India in the case of Mohd. Shafiq Vs. Mohd. Rafiq and another J.T. 2007 (5) SC 562 but the option was given to the prosecution to move an application under section 319 Cr.P.C. after completion of the cross examination of P.W. 1 or other evidence adduced. In the present case the cross examination of P.W. 1 Narendra Singh has been recorded by the trial court, thereafter the deposition of P.W. 2 Harveer Singh has also been recorded, then the fresh application under section 319 Cr.P.C. has been moved, the same has been allowed. Here in the present case the issue of transferring the case from the court of II-Addl. Sessions Judge, Bulandshahar to the court of IV-Addl. Sessions Judge, Bulandshahar is not involved, on this basis the legality of the impugned order may not be tested because the impugned order has been passed by the IV-Additional Sessions Judge, Bulandshahar when the sessions trial of the present case was transferred to his court by learned District Judge, Bulandshahar. The impugned order has been passed after considering the deposition of P.W. 1 and P.W. 2. According to the deposition of P.W. 1 and P.W. 2 the allegation of active participation of the applicant has been made. The trial court has adopted a proper procedure in passing the impugned order. The trial court has not committed any error in passing the impugned order, therefore, the impugned order is a perfect order, the same may be affirmed by dismissing this application.
Considering the submission made by the learned counsel for the applicant, learned A.G.A., Sri Gaurav Kakkar, counsel for the accused respondents and perusing the record it reveals that in the present case the applicant is named in the FIR along with other co-accused persons but he was not charge sheeted, the charge sheet was submitted against other co-accused persons. At the stage of the trial the examination-in-chief of P.W. 1 Narendra Singh was recorded in which he has made specific allegation against the applicant also. According to the allegation made in FIR the applicant along with the co-accused persons Naahar, Narpat, Malkhan, Manoj and Sanjay did the marpeet by using the knife and farsa blows. According to the deposition of P.W. 1 the applicant and other co-accused persons came at the place of the incident having lathi, knife and Farsa and they caused injuries by using lathi, farsa and knife blows and according to the deposition of P.W. 2 also the applicant and other co-accused person did the marpeet by using lathi, knife and Farsa blows. It has been specifically alleged that the applicant Ajay hurled the abuses and on his exhortation he and co-accused Manoj caused injury on the person of the P.W. 2. Other co-accused persons also caused injury on the person of P.W. 1 and other injured. The trial court has properly considered the deposition of P.W. 1 Narendra Singh and P.W. 2 Harveer Singh. They have made specific allegation against the applicant causing the injuries to the injured persons along with co-accused person. Prima facie according to the deposition of P.W. 1 and P.W. 2 the involvement of the applicant in commission of the alleged offence has been shown. The trial court has not committed any error in passing the impugned order even in passing the impugned order no procedural illegality has been committed. So far as the rejection of the first application moved by the first informant under section 319 Cr.P.C. after examination-in-chief of P.W. 1, the same was rejected by the trial court is concerned, it was rejected on technical ground because the examination chief of P.W. 1 was not recorded by that time and in view of the Supreme Court decision taken in case of Mohd. Shafiq Vs. Mohd. Rafiq and others J.T. 2007(5) SC 562, the order rejecting his application under section 319 Cr.P.C. vide order dated 18.4.2007 was affirmed by this court in Criminal Revision No. 1197 of 2007 but it was observed that it shall be open to the prosecution to move application under section 319 Cr.P.C., after completion of cross examination of P.W. 1 or evidence is adduced. After completing the cross examination of P.W. 1 and recording the statement of P.W. 2 Harveer Singh, fresh application under section 319 Cr.P.C. was moved, moving of such application was not barred, it was permissible under the law. The trial court did not commit any error in entertaining such application under section 319 Cr.P.C and allowing the same vide impugned order dated 20.11.2008. The impugned order dated 20.11.2008 passed by learned Addl. Sessions Judge, Court No. 4 Bulandshahar in S.T. No. 310 of 2006 is not suffering from any illegality or irregularities, the same is being affirmed.
The interim order, if any, is hereby vacated.
Accordingly this application is dismissed.
Dt: 7.2.2014 NA/RPD