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2007 DIGILAW 181 (UTT)

VIVEK SINGH v. STATE OF UTTARAKHAND

2007-04-16

PRAFULLA C.PANT

body2007
JUDGMENT 1. Heard Sri D.S. patni, learned counsel for the applicant and learned A.G.A. for the State. 2. By means of this fresh petition, petitioner has sought quashing of proceedings arisen out of charge sheet dated 30.8.1992 (annexure 5) registeed as Criminal Case no. 1552 of 1992 in the Court of Chief Judicial Magistrate, Nainital, State Vs. Vivek Singh. 3. Brief facts of the case are that in respect of some incident dated 12.6.1991, complainant lodged some First Information Report against present petitioner and another accused Rajeev Chaudhary, which was registered as Case Crime No. 179 of 1991, relating to offences punishable Section 307/34 of I.P.C. with Police Sation Mallital Nainital. It appears that after investigation a charge sheet was filed against petitioner Vivek Singh and co-accused Rajeev Chaudhary for their trial in respect of the offence allegedly committed by them punishable under Section 307 read with 34 of I.P.C. The Magistrate took cognizance on said charge sheet. However, meanwhile, it appears that a petition under Section 482 of Cr.P.C. (no. 3233 of 1998) was filed before Allahabad High Court by present petitioner Vivek Singh, seeking quashing of the aforesaid charge sheet. In said case, he was successful in obtaining an interim order dated 7.9.1998. However, after aforesaid petition of 1992 is received by transfer to this Court (re-registered as 133 of 2004), this Court vide its order dated 9.3.2007 dismissed the petition after hearing the parties on the round that on the basis of half beaked evidence, the innocence of the accused can not be examined in the proceedings under Section 482 of Cr.P.C. by said order, while disposing the petition under Section 482 of Cr.P.C., it is further observed that if the petitioner surrenders before the Court concerned, his bail application shall be disposed of without unreasonable delay. 4. In this fresh petition, learned counsel for the petitioner has filed copy of the judgment and order dated 17.8.2001 passed by learned Sessions Judge, Nainital in Sessions Trial No. 92 of 2000, whereby co-accused Rajeev Chaudhary was acquitted by said Court. On behalf of the petitioner, certified copies of the statements of the witnesses are also filed with this petition as annexure 2, which reveals that the three witnesses, namely Devendra Singh Bisht (complainant), Tara Singh and Dhiresh Chandra have turned hostile and did not support the prosecution story. Relying on SMS Pharmaceuticals Vs. On behalf of the petitioner, certified copies of the statements of the witnesses are also filed with this petition as annexure 2, which reveals that the three witnesses, namely Devendra Singh Bisht (complainant), Tara Singh and Dhiresh Chandra have turned hostile and did not support the prosecution story. Relying on SMS Pharmaceuticals Vs. Neeta Bhalla 2002 (2) SCC 459 and Superintendent and Remembrancer Vs. Mohan Singh AIR 1975 SC 1002, learned counsel for the petitioner submitted that the proceedings against the petitioner can be quashed as the co-accused has been acquitted of the charge and there is no evidence on recod which supports the prosecution story. 5. Having heard learned counsel for the parties and after perusing the case law and the papers on record, this Court is of the view that it is for the trial court to examine the witnesses and to come to the conclusion whether the petitioner is guilty or not. Though from the certified copies of the statements of the witnesses examined in the Sessions trial pending against the co-accused, there is likelihood of the prosecution witnesses not supporting the prosecution as against the petitioner, but, merely on the ground that the co-accused has been acquitted in the Sessions Trial, it cannot be said that the prosecution against the other accused is liable to be quashed. 6. Therefore, the petition under Section 482 of Cr.P.C. is dismissed. This Court has already observed while dismissing the earlier petition moved under Section 482 of Cr.P.C. vide its order dated 9.3.2007 that if the petitioner surrenders before the Court concerned and move a bail application, his bail application shall be considered and disposed of by the Court concerned without unreasonable delay. 7. With the above observations, this petition is dismissed.