KHETAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Shri Naushad Siddiqui, holding brief of Shri Arvind Srivastava, the learned counsel appearing on behalf of applicant, Shri R. S. Tripathi, holding brief of Shri A. P. Tripathi, the learned counsel appearing on behalf of opposite party no.2, the learned AGA and perused the record.

(2.) THE present application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 25.9.2006, passed by learned Additional Sessions Judge/Fast Track Court No.2, Budaun, whereby the applicant has been summoned under Section 307/34, 504 IPC in Sessions Trial No.182 of 2004.

(3.) THE applicant aggrieved by the aforesaid order, had preferred this petition, and this Court by order dated 6.11.2006 stayed the operation of the impugned order dated 25.9.2006. It is contended by the learned counsel for the applicant that, only on the basis of false and concocted story that the applicant and other accused persons have committed the alleged offence, the charge sheet was submitted only against three persons as the complicity of the applicant was not found to be true. THE learned court below has wrongly arrived at the conclusion that the prima facie case against the applicant is also made out, only when the order was passed by this Court on the application moved by the opposite party no.2 on 24.7.2006. THE power exercised by the court below under section 319 Cr.P.C. suffers from manifest error as after investigation no charge sheet was submitted against the applicant at the initial stage. When the statement of the witnesses and the injured were recorded, no specific role was assigned to the applicant and later on a story was developed before the trial court subsequently attributing the specific role to the applicant of firing upon the injured. Hence, the order passed against the applicant is liable to be quashed. In this regard the learned counsel has cited number of authorities of this Court as well of the Hon'ble Apex Court. THE reference of which are being given below :-