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2023 DIGILAW 500 (ALL)

Vijay v. State Of U. P.

2023-02-20

KARUNESH SINGH PAWAR

body2023
JUDGMENT : (Karunesh Singh Pawar, J.) 1. The petition has been filed under Section 482 CrPC for setting aside judgment and order dated 28.7.2022 passed by Sessions Judge, Etah in Criminal Revision No.63 of 2022 Chandra Kant alias Vikku and others versus State of U.P. and others under sections 307, 323, 324, 504, 506 I.P.C., P.S. Pilua, district Etah, with a further prayer to remand back the case to Sessions Judge, Etah to reconsider the matter. 2. Heard learned counsel for the petitioner, learned counsel for private respondents and learned A.G.A. for the State. 3. In brief, the case of the petitioner is that he filed an application under section 156 CrPC before the trial court with the allegation that on 25.12.2018 at 8.00 a.m. he along with one Raju alias Raj Kumar had gone to attend call of nature and when they reached near Primary School, Kapreta, they found the accused persons, i.e. respondents 2 to 4 present there. They abused the petitioner, beaten him and with an intent to kill, the accused Shivkant and Shashikant shot on him with fire arm, causing injury to the petitioner by the shot of Shiv Kant. The petitioner was escaped by the villagers. 4. Learned Addl. Civil Judge (Junior Division)/Judicial Magistrate, Court No.21, Etah after recording statement of the complainant and witnesses under sections 200 and 202 CrPC passed order dated 10.5.2022 whereby the trial court took cognizance and summoned the accused Shivkant alias Bhalu, Shashikant alias Gaurav under sections 323, 307, 504, 506 I.P.C. and and accused Chandrakant and Abhishek under sections 323, 324, 504, 506 I.P.C. 5. Feeling aggrieved with order dated 10.5.2022 (supra), the accused persons preferred a Criminal Revision No.63 of 2022 Chandrakant and three others versus State of U.P. and another. The Sessions Judge, Etah by the impugned order dated 28.7.2022 while allowing the revision petition set aside the order passed by the trial court with a direction to pass a fresh order in the light of the observation made in the order. 6. The learned counsel for the petitioner has assailed the revisional court's order mainly on the ground that the order directing the trial court to pass a fresh order after cross examining the complainant, i.e. the petitioner and the witnesses with a view to know the correct fact is bad in law and being irregular is liable to be set aside. 7. 7. Learned A.G.A. as well as learned counsel for the private respondents have opposed the petition. 8. A perusal of the order under challenge reveals that the learned Sessions Judge has noted in the impugned order that there is a rivalry going on between the parties and a criminal case of murder of the father of the accused Shivkant is pending against the petitioner and it is at the stage of evidence. Further it has been taken note of by the learned revisional court that on the complaint of the accused persons that the alleged injuries on the person of the petitioner are fake, the Chief Medical Officer Etah vide order dated 4.1.2019 directed the petitioner/complainant to appear before him for his re-medical examination by the Medical Board, however, he could not turn up before him. It was the case of the accused persons that by arranging with the Doctor, fake pellets were placed in the chest just below the skin and with a view to protect himself from the criminal offence of murder and exert pressure, the petitioner/complainant made a false case against the accused-respondents. Learned revisional court further did not find any document on record of the lower court to disclose that the petitioner was summoned by the Chief Medical Officer for his medical examination before the Medical Board. A perusal of the order dated 10.5.2022 passed by learned trial court also shows that the learned Magistrate while summoning the accused persons did not take into consideration the fact that the P.W.3, Doctor has not deposed before the court that the alleged injury caused to the injured petitioner was an injury by fire arm, nor there is any document on record to prove the injury by fire arm. The rivalry dispute going on between the parties has not been taken into consideration by the learned Magistrate. Taking this in view, the revisional court's order does not call for any interference to the extent it remands the matter to proceed with the case afresh, in accordance with law after taking into consideration the observations contained in it. However, the order of the revisional court that after cross examining the complainant and the witnesses, the learned Magistrate shall pass orders does not seem to be tenable and is bad in law. In this context, the law is very clear. However, the order of the revisional court that after cross examining the complainant and the witnesses, the learned Magistrate shall pass orders does not seem to be tenable and is bad in law. In this context, the law is very clear. The cross examination is done by the adverse party and it is for the purpose of trial within the meaning of Section 137 Evidence Act. 9. In view of the above, the order dated 28.7.2022(supra) to the extent it directs cross examining the complainant and witnesses is set aside. The rest part of the order is upheld. The learned Magistrate is directed to proceed with the case in accordance with law and the discussions made herein above, ignoring the direction of the revisional court to cross examine the complainant and the witnesses. 10. The petition is disposed of accordingly.