Court No. - 48
Case :- APPLICATION U/S 482 No. - 37133 of 2017 Applicant :- Ram Niwas Opposite Party :- State Of U.P. And Another Counsel for Applicant :- A.C.Srivastava,Ravitendra Pratap Singh C Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
This application under Section 482 of Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 29.7.2017 passed by the Additional Sessions Judge, Court No. 2, Ghaziabad in S.T. No. 346 of 2015, arising out of Case Crime No. 2469 of 2014, State vs. Firoj and others, under Section 302 I.P.C., P.S.- Loni, District- Ghaziabad as well as entire further criminal proceedings of the aforesaid session trial against the applicant.
Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the record.
Submission of counsel for the applicant is that the applicant has been summoned in a rather casual manner under Section 319 of Cr.P.C. and the evidence available on record should not have been treated as sufficient to justify the summoning of the applicant at this stage. Further submission is that the ratio and obiter as has been laid down by the Constitution Bench of the Apex Court in the case of Hardeep Singh versus State of Punjab and others, 2014 (3) SCC-92 has not been followed in letter and spirit. Even though the investigating officer after making thorough investigation into the case did not find participation of the accused-applicant substantiated and therefore, no charge sheet was submitted against him. The applicant was found present at a different place at the time of incident. But the investigation aspect has been completely ignored by the court below and merely on the basis of uncross-examined testimony of P.W.-1, the applicant has been summoned to face trial. It was further pointed out that in the F.I.R. which is said to have been lodged by the husband of the deceased Puranlal Pal, who claims himself to be the eye witness, the version given that sharp edged weapons were alleged to have been used by the accused persons but there was no allegation of any firearm having been used by any accused. But during the course of autopsy done on the dead body, it was found that the deceased had two firearm wounds on her person and no incised wounds which could be attributed to the sharp edged weapon was found on the dead body of the deceased by the doctor. Submission of the counsel is that in order to make up this loud contradiction between the testimony and oral testimony, version was changed when the P.W.-1 was examined in the court. He changed his version topsy turvy and alleged that the accused had come on the spot armed with firearm and used the firearm upon the deceased. Submission is that this is an artificially laboured attempt made by the P.W.-1 to get over the incompatibility between the medical evidence and initial version given in the F.I.R. and therefore goes to the route of the matter and renders his testimony completely unworthy of reliance. Submission is that it is on the basis of such examination-in-chief of just one witness which has been made the basis to summon the accused-applicant to face trial. Argument is that the summoning of the applicant is bad in the eyes of law because it reflect that the material available on record has not been appreciated with circumspection and the order reflects casual approach which is in violation of law laid down by the Constitution Bench of the Apex Court in Hardeep Singh's case (supra).
Contentions raised at the bar require detailed hearing on law and facts both.
Notice on behalf of opposite party No.1 has been accepted by learned AGA.
Issue notice to the opposite party no.2 returnable within four weeks.
Opposite party no.2 may file counter affidavit within three weeks after the service. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter.
List this matter immediately after expiry of the aforesaid period before the appropriate Bench.
Till the next date of listing, further proceedings of S.T. No. 346 of 2015, arising out of Case Crime No. 2469 of 2014, State vs. Firoj and others, under Section 302 I.P.C., P.S.- Loni, District- Ghaziabad pending in the court of Additional Sessions Judge, Court No. 2, Ghaziabad with regard to applicant namely Ram Niwas, will remain in abeyance.
It is clarified that the operation of the impugned order has been stayed only with regard to the applicant only. It is further clarified that if during the course of trial of the co-accused further evidence is adduced and obtained against the applicant and the trial court feels satisfied that sufficient evidence has been brought on record to justify the summoning of the applicant then, in such a situation the trial court shall be at liberty to pass another order on merits and the interim order staying the proceedings against the applicant on the basis of present impugned order, shall not be treated as a bar to exercise power at a subsequent stage, if new material and further evidence is adduced against the applicant in future.
Order Date :- 8.11.2017 Naresh