ILMAS Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Brijesh Sahai, learned Counsel for the Appellant and Sri K.N. Bajpayee, learned A.G.A. for the State.

(2.) The order which is impugned in the instant application filed by the applicant under Section 482 Code of Criminal Procedure is dated 9.6.2011, passed by Additional Civil Judge (J.D.), Garh Mukteshwar, District Ghaziabad in Case No. 317 of 2011 State v. Ilmas arising out of Case Crime No. 35 of 2011 State v. Bablu and others under Section 302, 506 I.P.C., P.S. Simbhawali, Ghaziabad by which the applicant has been summoned to face trial for the offences punishable under Sections 302 and 506 Indian Penal Code.

(3.) The brief facts of the case are that the opposite party No. 2 Asif lodged a first information report at P.S. Simbhawali on 1.2.2011 (annexure No. 1 to the affidavit accompanying this application) at about 8.45 p.m. alleging therein that when on 31.1.2011 at about 6.00 pm the informant, his brother Chaman and one Rahat S/o Tahir after having their meal were going on a walk three persons, namely, Bablu, Nadeem and one unknown person, all armed with country made pistols appeared before them and Nadeem caught hold of Chaman while Bablu shot Chaman in his stomach with his country made pistol and the third person held the informant and Rahat away from Chaman at gunpoint. The injured Chaman was taken to the hospital where he died. On the basis of the aforesaid FIR Case Crime No. 35 of 2011 was registered against Nadeem, Bablu and one unknown person. During the course of investigation the Investigating Officer apart from collecting other materials recorded the statements of informant Nadeem and Rahat and upon completion of investigation laid down charge sheet bearing No. 33 of 2011 dated 23.2.2011 under Section 302 and 506 I.P.C. (annexure No. 8) before the concerned Magistrate against Nadeem and Bablu. On the application moved by the complainant/opposite party No. 2 before the S.S.P., Ghaziabad the matter was directed to be investigated further by S.I.S., Ghaziabad by his order dated 25.2.2011 which has been brought on record by the applicant as annexure No. S.A.1 to the supplementary affidavit). During further investigation the S.I.S., Ghaziabad examined the informant Asif and two new witnesses Jan Mohammad @ Janu and Aftab who in their statements claimed that they had seen the applicant along with other co-accused armed with country made pistols running away from the place of occurrence on the relevant date after they had reached there upon hearing the sound of gun shot. Relying upon the statements of Jan Mohammad @ Janu and Aftab charge sheet bearing No. 33-A of 2011 dated 23.5.2011 was submitted against the applicant after completion of further investigation where upon the court below took cognizance and summoned the applicant by his order dated 9.6.2011 (annexure No. 12 to the affidavit accompanying this application).