Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3041 (ALL)

PREM CHAND v. STATE OF U. P.

2009-09-04

VIJAY KUMAR VERMA

body2009
JUDGMENT Hon’ble Vijay Kumar Verma, J.—Heard Sri A.P. Mishra, Advocate, appearing for the applicant and A.G.A. for the State. 2. By means of this application under Section 482 of the Code of Criminal Procedure (in short ‘the, Cr.P.C.’), prayer to quash the order dated 9.3.2009, passed by Additional Sessions Judge, Court No. 12, Bulandshahr, in S.T. No. 1015 of 2007, State v. Ganga Das and others, under Sections 364/34, 302/34, 201, IPC, P.S. Kotwali Dehat, District Bulandshahr, has been made. 3. By the impugned order (Anenxure-14), the applicant Prem Chand has been summoned to face the trial under Sections 364/34, 302/34 and 201, IPC in S.T. No. 1015 of 2007, State v. Ganga Das and others, exercising the power under Section 319, Cr.P.C. 4. From the record, it transpires that after investigation of the case registered at crime No. 81A/305 A of 2007, under Section 364, 302, 201, IPC at P.S. Kotwali Dehat, Bulandshahr, charge-sheet was not submitted against the applicant Prem 2 Chand, although he was named in the FIR, which was lodged by Dharm Singh, s/o Gyan Chand. The said FIR was lodged about kidnapping of Jogendra, son of the complainant, by the accused Ganga Das, Jagdish, Mahipal and Prem Chand (applicant herein) on 26.4.2007 and committing his murder. The dead body of deceased was found lying on 28.4.2007 near railway track in between Dadari and Maripat railway stations. On the case being committed to the Court of session for trial against charge sheeted accused, S.T. No. 1015 of 2007 was registered, in which after examination of the witnesses Dharm Singh, Smt. Prakasho and Ram Kishan, an application bearing No. 22-B was moved on behalf of prosecution under Section 319, Cr.P.C. to summon the accused Prem Chand for trial. After hearing parties counsel, the Court below, vide impugned order dated 9.3.2009 allowed the application and summoned the applicant to face the trial as mentioned herein-above. 5. After hearing parties counsel, the Court below, vide impugned order dated 9.3.2009 allowed the application and summoned the applicant to face the trial as mentioned herein-above. 5. The first and foremost submission made by learned counsel is that the applicant Prem Chand is serving in Central Industrial Security Force (in short ‘the CISF’) and he was performing his duty in Delhi on the day of incident and hence, there was no occasion for him to participate in the incident of kidnapping and committing murder of the deceased Jogendra and since the Court below has ignored the material evidence collected by the investigating officer during investigation and has passed the impugned order merely on the basis of statements of the witnesses Dharm Singh, Smt. Prakasho and Ram Kishan, hence the impugned order being illegal, should be set aside. For this submission, my attention was drawn towards the entries (annexure-6) made on 20.12.2007 in the case diary of case crime No. 305 of 2007, under Section 364, 302, 201, IPC. My attention has also been drawn towards the identity card (Annexure-7) of the applicant Prem Chand to show that he is serving in CISF and attendance roll (paper No. 33). 6. In response, the learned AGA has submitted that the applicant was named in the FIR and his complicity in the alleged incident is prima facie established on the basis of the statements of the witnesses examined by prosecution in trial Court and hence interference in the impugned order would not be justified. 7. I have given my thoughtful consideration to the aforesaid submissions made by learned counsel for the parties. Admittedly, the applicant Prem Chand was named in the FIR, but charge sheet was not submitted against him. On the basis of the statements of the witnesses Dharm Singh, Smt. Prakasho and Ram Kishan, the applicant has been summoned to face the trial by the learned Court below exercising the power under Section 319, Cr.P.C. Annexure-10, 11 and 12 are the copies of the statements of these witnesses. I have carefully gone through all these statements. On the basis of the statements of aforesaid witnesses, prima facie complicity of the applicant Prem Chand in the alleged incident is established and hence, the learned Court below did not commit any illegality in summoning the applicant to face the trial along with charge sheeted accused. I have carefully gone through all these statements. On the basis of the statements of aforesaid witnesses, prima facie complicity of the applicant Prem Chand in the alleged incident is established and hence, the learned Court below did not commit any illegality in summoning the applicant to face the trial along with charge sheeted accused. Whether the applicant Prem Chand was actually performing his duty on the date of alleged incident can be considered after evidence is led by the accused persons in their defence. At the stage of passing summoning an order under Section 204 and 319, Cr.P.C., the Court is only required to see that there are sufficient grounds to proceed against the accused and at this stage, the Court is not required to be satisfied that the evidence produced by the prosecution is sufficient for conviction. Sub-section (1) of Section 319, Cr.P.C. itself provides that where in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. 8. Therefore, for the reasons mentioned herein-above, interference by this Court in the impugned order is not warranted. 9. However, considering the facts and circumstances of the case, it is directed that if the applicant moves application for appearance/surrenders before the trial Court concerned within 30 days from today, the Court concerned shall fix date on that application for surrenders/appearance. In the meantime the Court concerned shall seek instruction from the prosecution side. In case, the applicant moves the application for bail on the day of appearance or surrenders, the same shall be considered and disposed of expeditiously, if possible on the same day, keeping in view the law/guidelines laid down in Smt. Amrawati and another v. State of U.P., 2004 (57) ALR (290) (Seven Judges’ Judgment of this Court) and Hon’ble Apex Court judgment in Lal Kamlendra Pratap Singh v. State of U.P. and others, 2009 (3) ADJ 322 (SC), but having regard to the observations made by the Division Bench of this Court in Pradeep Tyagi v. State of U.P. and others, 2009(3) ADJ 697 and Sheo Raj Singh @ Chhuttan v. State of U.P. and others, 2009(2) ADJ 453 (DB). 10. 10. It is further directed that the effect and operation of the impugned order shall remain suspended and no coercive method will be adopted against the applicant Prem Chand for a period of one month or till his surrender in Court, whichever is earlier. 11. With aforesaid observation/direction, the application under Section 482, Cr.P.C. is finally disposed of. ————