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2016 DIGILAW 4148 (ALL)

Arvind Yadav v. State of U. P.

2016-12-22

VIVEK KUMAR BIRLA

body2016
JUDGMENT Heard learned counsel for the applicants well as learned AGA for the State respondents and perused the record. The present application has been filed with the following prayers: - "1. It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash order dated 6.6.2016 Criminal Case No. 646 of 2015 arising out of Case Crime No. 2967 of 2009 under Sections 457, 380, 411, 414 IPC, Police Station Kotwali, District Ghazipur by Judicial Magistrate, Room No. 9, Ghazipur in regard to framing of charge. 2. It is also prayed that this Hon'ble Court be pleased to quash the order dated 07.3.2014 passed by Judicial Magistrate Court No. 2 rejecting the application of the applicants moved u/s 239 Cr.P.C. in Case No. 646 of 2015 (State vs. Arvind and others) u/s 457, 414 IPC, P.S. Kotwali Ghazipur. 3. It is further prayed that this Hon'ble Court pleased to set-aside the order passed by Special Judge SC/ST Act Ghazipur in Criminal Revision No. 86 of 2014 (Arvind vs. State) u/s 300, 457, 411 IPC, P.S. Kotwali, Ghazipur. 4. It is further prayed that the proceeding of the Criminal Case No. 646 of 2015 (State vs. Arvind) arising out of Case Crime No. 2967 of 2009, u/s 457, 380, 411 IPC, Police Station Kotwali, District Ghazipur pending in the court of Judicial Magistrate, Room No. 9, Ghazipur may remained stayed, during the pendency of the present application before this Hon'ble Court." Submission of the learned counsel for the applicants is that no offence has been made out against the applicants. The statement of the informant was recorded on 7.11.2009 wherein names of the applicants was disclosed, however it is stated that source of information of theft has not been disclosed and the applicant Arvind was arrested on 8.11.2009 in whose possession recovery was shown by the police, which has not been mentioned in the first information report and no identification of goods recovered was shown and as such it cannot be said that the goods belong to the informant and no offence has been made out. A charge-sheet has been submitted against the applicants on 28.11.2009 under Sections 380, 457, 411, 414 IPC and the cognizance order was challenged by the applicants by filing an application u/s 482 no. A charge-sheet has been submitted against the applicants on 28.11.2009 under Sections 380, 457, 411, 414 IPC and the cognizance order was challenged by the applicants by filing an application u/s 482 no. 17144 of 2011 (Arvind Yadav & Another vs. State of U.P. & Another), which was disposed of vide order dated 22.11.2011 with permission to move discharge application. Thereafter, the applicants filed discharge application before the Court below, which was rejected by the Judicial Magistrate, Ghazipur vide order dated 7.3.2014 recording that the first information report was lodged on 19.11.2009 regarding the theft on the same day and on arrest of applicant no. 1, stolen goods were recovered from his possession and as such there was no good ground to discharge the applicants. Challenging the rejection order, the applicants filed a criminal revision no. 86 of 2014, which too was rejected vide order dated 19.9.2014. The aforesaid order was never challenged all through for more than two years and charges were framed on 5.6.2014. All these orders are being challenged in the present application. Admittedly, charges have been framed against the applicants and as such no interference is warranted by this Court in the orders rejecting discharge application and the criminal revision. It is a settled law that at this stage the court is to consider only police papers and the defence of the accused cannot be considered and there is no scope to appreciate any other material. A reference may be made in this regard to a judgment of Hon'ble Apex Court in the case of Amit Kapoor vs. Ramesh Chander and another, (2012) 9 SCC 460 . In so far as the framing of charge is concerned, it is the settled law that at this stage inadequacy of the evidence is not to be considered. Further, interference in framing of charge is only an exception. In the present case, I do not find any exceptional circumstances so as to exercise powers under Section 482 Cr.P.C. A reference may be made in this regard to the decisions of Hon'ble Apex Court in Radhey Shyam Vs. Kunj Bihari, 1989 Supp. (2) SCC 572 and State of Punjab Vs. Kasturi Lal, (2004) 12 SCC 195 . In such view of the matter, I do not find any good ground to interfere with the order impugned herein. The present application is accordingly dismissed.