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2017 DIGILAW 332 (ALL)

Mahesh v. State of U. P.

2017-01-24

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri G.P. Mishra for the applicants. This application under Section 482 , Cr.P.C. has been filed for setting aside the order dated 14.10.2016 passed by Additional Chief Judicial Magistrate, Court No.1, Bulandshahar summoning the applicants for trial in Complaint Case No.730 of 2015(Chhotey Lal vs. Mahesh and others) under Sections 452, 323, 506, 376-D, I.P.C. and the order of Additional Sessions Judge, Court No.4, Bulandshahar dated 7.01.2017 dismissing the revision of the applicants against the aforesaid order. The counsel for the applicants submits that earlier through an application under Section 156(3), Cr.P.C. an F.I.R. of incident was lodged as Case Crime No.620/115/2014 under Sections 452, 323, 504, 506, 376D, 511, I.P.C. and 3(2)(v) SC/ST Act. The police after investigation submitted Final Report 3/2014 on 20.7.2014. The first informant filed a protest petition against the aforesaid Final Report. Thereafter the Magistrate has followed the procedure of complaint case and recorded the statements of the first informant as well as witnesses under Sections 200 and 202, Cr.P.C. The Magistrate after considering the entire material on the record by order dated 16.1.2016 did not find any sufficient ground for proceeding with the case, therefore, dismissed the complaint under Section 203 , Cr.P.C. The order dated 16.1.2016 was challenged by the complainant in Criminal Revision No.108 of 2016, which was allowed on 31.8.2016 and the matter was remanded to the Magistrate concerned for passing a fresh order. After remand the Magistrate by the impugned order dated 14.10.2016 summoned the applicants on the same set of allegations in the complaint as well as evidence recorded under Sections 200 and 202, Cr.P.C. The revision of the applicants have been wrongly dismissed by Additional Sessions Judge. In support of the complaint statement of Sundari daughter of the victim has been recorded. Her statement was not found as natural by the Magistrate himself in the order dated 16.1.2016. Although other children of the victim were also sleeping in the adjoining room but they were not produced as witness. It is admitted by the complainant as well as witnesses that there is enmity of the applicants and father in law of the complainant on account of which the applicants have been falsely implicated in this case. I have considered the arguments of the counsel for the applicants. It is admitted by the complainant as well as witnesses that there is enmity of the applicants and father in law of the complainant on account of which the applicants have been falsely implicated in this case. I have considered the arguments of the counsel for the applicants. At present the allegation in the complaint has been made that the applicants have committed gang rape with the victim. This statement has been supported by the statement of the victim and her evidence is admissible under Section 114A of Evidence Act. At the time of summoning there was sufficient material before the court below to pass the summoning order. At this stage it cannot be examined that the applicants have been falsely implicated due to enmity. However, this can be their defence in securing bail before the court below. The summoning order has not been found to be illegal. Therefore, the revision has been dismissed correctly. No interference is required by this Court. However, it is observed that in case the applicants surrender before the court below within 30 days from today and apply for bail, the same shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P., 2004 (57) ALR 290 and affirmed by Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (3) ADJ 322 (SC). For a period of 30 days from today, no coercive action shall be taken against the applicants. It is made clear that no further time shall be allowed to the applicants to surrender before the Court below. With the aforesaid observations, the application stands disposed of.