MAHADEO PRASHAD Vs. STATE OF UP

JUDGEMENT

(1.) This writ petition has been placed before me after nomination from Hon'ble the Chief Justice. Mahadeo Prasad, petitioner has invoked extra ordinary jurisdiction of this court, under Article 226/227 of the Constitution of India, with the prayer to quash the orders dated 26.3.2010, passed by Special Judge SC/ST Act, Jalaun at Orai, in Criminal Revision No. 96/09, Tahar Singh and another versus State of U.P. and another and order dated 24.4.2009, passed by Chief Judicial Magistrate, Jalaun at Orai, in Criminal Case No. 511/06, Bahadur Singh Vs. Tahar Singh and others, u/s 302 and 328 IPC, P.S. Rampura, district Jalaun at Orai. By the impugned order dated 24.4.2009, CJM, Jalaun at Orai has summoned the applicants to stand trial for the aforesaid offences, in the aforesaid criminal case. The impugned orders dated 26.3.2010 and 24.4.2009 are

(2.) Annexure Nos 1 and 2 respectively, to this writ petition. Back ground facts in thumb nail description of this case are that on the intervening night between 16/17 January 2006, informant Bahadur Singh Parihar, brother of deceased Vishal Singh lodged an intimation at P.S. Rampura, district Jalaun at Orai, mentioning therein that both the informant and deceased were resident of village Umari, P.S. Rampura, district Jalaun. On the intervening night between 16/17 January 2006, at 11 A.M., co-villager Tahar Singh, along with 2 or 3 other persons, brought his brother Vishal Singh at his house and intimated that he was lying in drunkard condition out side the village and they had carried him to his house. Informant found his brother dead. Leaving dead body of his brother at his house, informant got FIR scribed from Man Singh Sengar r/o village Litawali and lodged it at P.S. Rampura at 1.35 p. m. on 17.1.2006.FIR of the informant Bahadur Singh Parihar was registered in GD No. 15 on 17.1.2006.

(3.) Inquest on the dead body vide Annexure No. 4 was conducted at 2.38 p. m. and was concluded at 4 p. m. by Sub Inspector. Autopsy on the dead body of the deceased was conducted on 18.1.2006 at 3 p. m. by Dr. L.R. Ahirwar, vide Annexure No. 5. No ante-mortem injury was detected on all over the body but Viscera in two jars was preserved by the doctor. According to the doctor deceased was aged about 45 years and was having an average built body. On the basis of the report since police did not act Bahadur Singh approached the power of Magistrate u/s 156 (3) Cr. P.C., by filing an application on 27.3.2006, with the prayer that police station Rampura be directed to register the FIR and investigate. Along with the application u/s 156 (3) Cr. P.C., affidavits of Bahadur Singh and Chintai were annexed vide Annexure Nos. 7 and 8 to this application. Vide order dated 29.5.2006, Annexure No. 10, to this application, Judicial Magistrate/ Civil Judge (Junior Division), Orai, directed the FIR to be registered and investigation to be carried out. In pursuance of the order, passed by Magistrate, FIR of Crime No. 318/06, u/s 328 IPC was registered on 13.12.2006 at 1.30 a.m. at P.S. Rampura, district Jalaun, vide Annexure No. 11 to this application. Police, during the course of investigation had interrogated the doctor, who had conducted the post mortem on the body of the deceased. After conducting usual investigation, I.O. submitted Final Report vide Annexure no. 13 on 18.1.2007 vide F.R. No. 2/07. It is mentioned here that in application u/s 156 (3) Cr. P.C., four persons, who were alleged to be the culprits were Tahar Singh, Ram Sundar, Brijendra alias Karia and Mahadeo. After receiving Final Report, a Protest Petition Annexure 14 was filed by Bahadur Singh against acceptance of F.R. Vide Annexure 15, CJM, Jalaun at Orai, in concerned Misc. Case NO. 153/01, accepted the F.R. on 31.8.2007 and rejected the Protest Petition. Aggrieved by the said order dated 31.8.2007, Bahadur Singh preferred Criminal Revision No. 222/07 before Sessions Judge, Jalaun at Orai, which was heard and allowed by order dated 24.1.2008, by Additional Sessions Judge/ F.T.C, Jalaun at Orai, who remanded the matter back, to the Magistrate.