ABDUL AZIZ Vs. STATE

JUDGEMENT

(1.) THIS application under Section 215, Cr. P. Code has been filed by one Abdul Aziz, resident of mohalla Pirzada, Moradabad City, who has been committed for trial for offences under Section 302 read with Section 148, Indian Penal Code, by an order of the Judicial Magistrate City Moradabad dated 5 -1 -61. It is prayed that the commitment be quashed as being illegal and against the provisions of law.

(2.) THE facts giving rise to the above application may be stated as follows. One Abdul Rashid, a resident of mohalla Asalatpura, Moradabad, lodged a report at police station Kotwali, Moradabad on 5.6.1960 at 6.20 p.m. disclosing that Alimullah, Yusuf, Yunus, Yasin, Laddan, Hanif, Abdul Aziz, Bashatullah along with Abdul Salam formed an unlawful assembly with the common object of committing the murder of Abdul Majid, and causing hurt to Abdul Rashid and others and the said accused in prosecution of their common object committed the murder of Abdul Majid and voluntarily caused grievous hurt to Abdul Jalil with sharp edged weapon and voluntarily caused simple hurts to Abdul Rashid with sharp edged weapon and simple hurts to some other persons named in the first information report while committing rioting. In the first information report it was stated that all the accused were residents of mohalla Asalatpura, Moradabad. The investigating officer went to the spot short time after the report was lodged and in the general diary also all the accused are mentioned to be residents of Asalatpura.

(3.) IT appears that on 18th June 1960 one Abdul Salam son of Banne Hasan, resident of mohalla Pirzada, Police Station Maghalpura, Moradabad, moved an application before the Additional District Magistrate (Judicial) Moradaba, implicating applicant Abdul Aziz and his nephew residents of mohalla Pirzada in the said rioting and murder. The investigating officer Sri U. D. Sharma then arrested the applicant from the hospital on 23.6.1960. When Abdul Majid, the elder son of the applicant came to know about the application filed by Abdul Salam son of Banne Hasan, he moved an application in the Court of the enquiry Magistrate on 29.6.1960 for obtaining a copy of the same. This application for obtaining the copy was registered in the Court in the copying department as urgent and was forwarded to the Court of the Additional District Magistrate (Judicial) for sending the said application in original so that copy of the same may be issued by the copying department in due course but it appears that a report was received from the office of the Additional District Magistrate (Judicial) that no such application had been made. However, on the report received from the office of the Additional District Magistrate (Judicial), this application for obtaining the copy was rejected by the enquiry Magistrate on 7.7.1960. It further appears that the application of Abdul Salam was sent from the Court of the Additional District Magistrate (Judicial) to the office of the Superintendent of Police, Moradabad for enquiry through Dak -bahi at serial number 30 dated 23.6.1960. Then on 11.8.1960 the applicant moved two applications in the Court of the learned Additional District Magistrate (Judicial) - one for the summoning of the above application of Abdul Salam son of Banne Hasan, dated 18.6.1960 from the office of the Superintendent of Police and the second one was under Section 476, Criminal Procedure Code that the persons responsible in the office of the Additional District Magistrate (Judicial) for sending a false report may be dealt with according to law. It appears that the learned Additional District Magistrate (Judicial) did not pass any order on those applications on that day and asked the applicant to come the next day. The applicant presented the applications on 12.8.1960 and on that day too the applications were not entertained and were returned with the direction that they be presented the next day. The applicant again went to the Court of Additional District Magistrate (Judicial) on 13.8.1950 and presented the said applications. On that day, however, the learned A.D.M. (J) entertained the said applications and passed an order 'Keep on file' and did not dispose them of. During the pendency of the enquiry proceedings an application was made on 17.12.1960 on behalf of the present applicant that Faruq nephew of Abdul Rashid who wrote the first information report at the dictation of Abdul Rashid, Abdul Salam son of Banne Hasan and Sri U. D. Sharma, Sub -Inspector, who investigated the case, be summoned, presumably for the purpose of showing that there has been fabrication in the first information report and he was being implicated falsely for ulterior reasons. The learned Magistrate on that application passed an order to the effect that the application was premature and would be considered after the close of the prosecution evidence.