NITIN KOHALI Vs. STATE OF UP

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 6.6.2011 and 5.8.2011 passed by Chief Judicial Magistrate, Agra (Annexure 14 and 13 to the writ petition) in criminal case no.5910 of 2011 State Vs. Shammi Kohali and others under sections 364, 302, 120-B IPC, P.S. New Agra, District Agra as well as revisional order dated 27.9.2011 passed by Sessions Judge, Agra. Heard Sri Satish Trivedi, senior advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the petitioner, learned AGA for the State and Sri P.K. Singh and Sri Pankaj Dwivedi, learned counsel for the complainant.

(2.) BRIEF, the facts of the case are that on 26.2.2010, FIR was lodged by the complainant Rakesh Gupta - respondent no.2 against Smt. Shammi Kohali, Vikas Chhabra, Mohit Bhardwaj and Nitin Kohali stating therein that on 25.2.2010 at 7:00 p.m., son of the first informant named Gaurav Gupta was standing at the gate of his house. The accused Smt. Shammi Kohali, Mohit Bhardwaj and Vikas Chhabra took him away by a car on the pretext that they had to talk to him. When Gaurav did not return for a considerable time, the first informant started a search. On Mughal Road, Dharamveer and Montu @ Nitin Sharma told him that they had seen Gaurav being taken away in a Scorpio vehicle by Smt. Shammi Kohali, Nitin Kohali, Mohit Bhardwaj and Vikas Chhabra. On 26.2.2010, the dead body of Gaurav Gupta was found on Mughal Road and FIR was lodged. There was previous enmity between the parties.

(3.) SRI Trivedi, senior advocate appearing on behalf of the petitioner submits that in the FIR, the petitioner was not alleged to have taken Gaurav Gupta from his house, but this allegation was only against three co-accused. In the FIR, it was mentioned that the witnesses Dharamveer and Montu @ Nitin Sharma told the first informant that they had seen Nitin Kohali driving the car wherein the deceased was being taken. Learned counsel contends that in further investigation, these two witnesses have specifically denied having witnessed the incident and, therefore, there is no material against the petitioner warranting his trial by the Court. The contention is that after further investigation, it was found that the petitioner was innocent and a supplementary report under section 173 (8) Cr.P.C. was filed in his favour and, therefore, it was incumbent on the part of the Magistrate to rely on the final report submitted in favour of the petitioner and he should have been discharged.