State v. Rohit and others) under section
Case Details
Neutral Citation No. - 2024:AHC:133771 Court No. - 77 Case :- APPLICATION U/S 482 No. - 12243 of 2024 Applicant :- Radha Ballabh And 5 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Saroj Kumar Tiwari Counsel for Opposite Party :- Desh Ratan Chaudhary,G.A.,Siddharth Chaudhary Hon'ble Rajeev Misra,J.
Legal Reasoning
1. Heard Mr. Vivek Shandilya, the learned Senior Counsel assisted by Mr. Saroj Kumar Tiwari, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. D.R. Chaudhary, the learned counsel representing first informant-opposite party-2. 2. Perused the record. 3. Applicants-Radha Ballabh and 5 Others, who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following order:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may kindly be pleased to allow this application and quash the entire criminal proceeding of criminal case 10347 of 2024 arising out of case crime no.684 of 2018 related to charge sheet dated 07.09.2023 and cognizance order dated 15.03.2024 (State Vs. Rohit and others) under section 323, 452, 354Kha, 307, 147, 148, 149, 34 I.P.C., Police Station- Iglas, District- Aligarh as well as summoning order dated 15.03.2024, pending in the court Magistrate, Aligarh. of learned Chief Judicial It is, further prayed that this Hon'ble Court may kindly be pleased to stay the further proceeding of criminal case 10347 of 2024 arising out of case crime no.684 of 2018 related to charge sheet dated 07.09.2023 and cognizance order dated 15.03.2024 (State Vs. Rohit and others) under section 323, 452, 354Kha, 307, 147, 148, 149, 34 I.P.C., Police Station- Iglas, District-Aligarh as well as summoning order dated 15.03.2024, pending in the court of learned Chief Judicial Magistrate, Aligarh, during the pendency of present application before this Hon'ble Court, so that justice may be done, otherwise the applicants shall suffer irreparable loss and injury." 4. Learned senior counsel for applicants submits that in respect of an incident, which is alleged to have occurred on 13.08.2018, an FIR was lodged from the side of present applicants, which came to be registered as Case Crime No. 610 of 2018, under Sections 323, 504, 506, 307 IPC, Police Station-Iglas, District-Aligarh. In the aforesaid FIR, Four persons namely - (1) Jawahar Singh, (2) Kaptan Singh, (3) Shripal and (4) Rajendra have been nominated as named accused. 5. With reference to the same incident, another FIR, pursuant to the order dated 13.09.2018 passed by concerned Magistrate in exercise of jurisdiction under Section 156(3) Cr.P.C., came to be registered from the side of first informant-opposite party-2 as Case Crime No. 684 of 2018, under Sections 147, 148, 149, 323, 452, 354-Kha, 307, 34 IPC, Police Station-Iglas, District-Aligarh. In the aforesaid FIR, nine persons namely - (1) Rohit, (2) Radha Ballabh, (3) Kris Chaudhary, (4) Rinku, (5) Rakesh, (6) Manoj, (7) Kunjan, (8) Sachin and (9) Jam Singh have been nominated as named accused. 6. Learned senior counsel for applicants, with reference to the material on record, has tried to impress upon the Court that no offence under Section 307 IPC can be said to be made out against present applicant. Concerned Magistrate, while taking cognizance in terms of Section 190(1)(b) Cr.P.C. is under a legal obligation to consider the papers accompanying the police report and only on basis thereof, he is required to take cognizance inasmuch as, the concerned Magistrate is not bound by the opinion expressed by the Investigating Officer in the police report submitted under Section 173(2) Cr.P.C. On the above premise, it is thus sought to be urged that the charge sheet dated 07.09.2023 submitted by the Investigating Officer, whereby present applicants have been charge sheeted under Section 307 IPC is manifestly illegal. Similarly, the cognizance taking order/summoning order is also illegal and arbitrary. He, therefore, submits that the impugned charge sheet submitted by the Investigating Officer as well as cognizance taking order/summoning order passed by Court below are liable to be quashed by this Court. 7. Per contra the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant-opposite party-2 have vehemently opposed the present application. They submit that it is true that the Court, while taking cognizance in exercise of jurisdiction under Section 190(1)(b) Cr.P.C., is not bound by the opinion expressed by the Investigating Officer but in view of the law laid down by the Apex Court in the case of State of Gujarat Vs. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539, the Magistrate is not required to record detailed reasons in support of the cognizance taking by him. Only a prima-facie satisfaction is to be observed by the concerned Magistrate, while taking cognizance on the basis of police report. It is then submitted that whether on the basis of material on record, an offence under Section 307 IPC is made out or not, the learned A.G.A. submits that it is not the injury, which determines the evocation of Section 307 IPC but it is the intention behind the occurrence, which determines the evocation of Section 307 IPC. Whether on the basis of statements of the witnesses examined under Section 161 Cr.P.C., an offence under Section 307 IPC is made out or not can be agitated initially at the time of framing of charge, which jurisdiction is to be exercised by Court below in terms of Section 211 Cr.P.C. or it can be agitated before Court below by moving a discharge application in terms of Section 227 Cr.P.C. On the above conspectus, the learned A.G.A. submits that no good ground for interference by this Court is made out. Applicant has effective alternative remedy in respect of the grievance raised in present application. 8. Mr. D.R. Chaudhary, the learned counsel representing first informant-opposite party-2 has adopted the arguments raised by the learned A.G.A. With reference to the material on record, he submits that as per the medical opinion, a pellet was found in the head of the injured and therefore, prima-facie, an offence under Section 307 IPC is made out against accused-applicant. 9. Be that as it may, considering the fact that under the Code (Cr.P.C.), liberty is granted to accused-applicant to seek discharge in terms of Section 227 Cr.P.C., therefore, this Court declines to entertain the present application.
Decision
10. Accordingly, this application is disposed of finally with liberty to applicant to approach Court below by moving a discharge application in terms of Section 227 Cr.P.C. along with a certified copy of this order within a period of two weeks tom today. In case, such a discharge application is filed by applicant within the period mentioned above, Court below shall decide the same by a reasoned and speaking order within a period of two months thereafter. 11. It goes without saying that till the disposal of discharge application, no further action shall be taken against applicant. Order Date :- 21.8.2024 Vinay