VIPIN DIXIT Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Shri Apul Misra, learned counsel for the applicants, Shri V. S. Parmar, learned counsel appearing on behalf of complainant, learned AGA for the State and perused the record.

(2.) THE instant application has been filed by the applicants invoking inherent jurisdiction of this Court under Section 482 Cr.P.C., with a prayer to quash the order dated 31.5.2012, passed by Additional Sessions Judge Ex-Cadre, Court No.2, Mainpuri in Session Trial No.46 of 2008, whereby the applicants have been summoned under Section 302 IPC read with Section 34 IPC to face the trial on the application moved by the opposite party no.2, Krishna Kumar Dubey alias Munna Devariya under Section 319 Cr.P.C.

(3.) SUBMISSION of the learned counsel for the applicants is that, during trial the statement of Krishna Kumar Dubey alias Munna Devariya, who is the complainant, was recorded as P.W.1 and of his wife, Shashi was recorded as P.W.2, thereafter an application was moved under Section 319 Cr.P.C. for summoning the applicants on the ground that the complainant has lodged the first information report against all the accused persons, but the investigating officer has conducted the investigation in perfunctory manner and dropped the names of all the other accused persons. The court below deferred to pass any order on the application under Section 319 Cr.P.C., by holding that it would be considered after examination of other witnesses namely Smt. Shashi wife of Bablu and Smt. Laxmi, wife of Sanju alias Sanjeev Kumar. This order was passed on 2.7.2009, fixing 16.7.2009. The complainant challenged the said order before the Hon'ble High Court by moving a Criminal Misc. Application under Section 482 Cr.P.C. No.16935 of 2009, whereby this Court vide order dated 28.7.2009, rejected the application having found no illegality in the order passed by the court below. Thereafter the statements of Smt. Shashi, wife of Bablu, Smt. Laxmi Devi, wife of Sanju alias Sanjeev Kumar(deceased) were recorded. The trial court examined Smt. Shashi and Smt. Laxmi Devi as a court witness nos.1 and 2 and one Ram Aadhar as a court witness no.3. Thereafter the court below on the basis of their statements did not find to prosecute the proposed accused persons, hence rejected the application of the opposite party no.2 under Section 319 Cr.P.C. vide order dated 28.4.2010, which was again challenged by the opposite party no.2 by filing a Criminal Misc. Application under Section 482 Cr.P.C. No.24062 of 2010, which too was rejected by the another Bench of this Court on 30.7.2010. The said order passed by the court below became final as it was not challenged before the Hon'ble Apex Court. The opposite party no.2 having failed in his attempt to summon the other accused persons who have not been charge sheeted by the police for want of evidence against them, moved an application under Section 311 Cr.P.C. with a prayer to summon Km. Shilpi and Km. Shivi as a material witness of the incident. The said application was allowed by the court below vide its order dated 6.8.2011, thereafter the statement of Km. Shilpi was recorded as C.W.3. The complainant again moved an application under Section 319 Cr.P.C. on 17.1.2012 after the evidence of Km. Shilpi was recorded as C.W.3, and the court below has illegally allowed the application under Section 319 Cr.P.C., summoning the applicants to face the trial, when on earlier two occasions this Court did not allow the application of the opposite party no.2 moved under Section 319 Cr.P.C. There is no iota of evidence against the applicants, and merely on the basis of the evidence recorded earlier, which has been reiterated by the court witness Km. Shilpi, the applicants have been summoned by the court below. Hence, the order passed by the court below suffers from manifest error of law and liable to be quashed. The evidence adduced is not of such a nature that there is any likelihood that the applicants would be convicted.