HIMALAYA Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard learned counsel for the appellant, learned counsel for the complainant /respondent No. 2 and learned A.G.A. for the State.

(2.) The present criminal appeal has been preferred under Sec. 14- A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against order dtd. 16/7/2022, passed by the learned Additional Sessions Judge/Special Judge, (SC/ST Act), Court No.2, Bhadohi Gyanpur in Criminal Case No.81 of 2016 (State Vs. Subhash and others), under Ss. 323, 504, 506, 325 IPC and 3(1)10 SC/ST Act, whereby the trial court has summoned the appellant under Sec. 319 Cr.P.C.

(3.) Learned counsel for the appellant has argued that the impugned order is against the facts and law and thus, liable to be set aside. In this matter a non-cognizable report was lodged by the respondent No.2 on 28/3/2015 against accused Subhash, Rakesh, Lavkush and Arun but the appellant was not named therein. In his statement recorded under Sec. 161 CrPC also, the respondent No.2 did not name the appellant. It was submitted that the respondent No.2 has moved an application under Sec. 155(2) CrPC for investigation of the incident of non-cognizable report, and in that application appellant was also named but during investigation neither the respondent No.2 nor the other injured person has named the appellant. During trial of co-accused persons, the appellant has been summoned under Sec. 319 CrPC, whereas, there is no credible evidence against him. It was further pointed out that during trial also, the injured Satish Kumar has not named the appellant and that only complainant/P.W.1 has named the appellant but no specific role was assigned to the appellant. The statement of complainant made against appellant is not consistent with his statement, recorded during investigation. Referring to the facts and evidence of the matter, it was submitted that absolutely no case for summoning of appellant under Sec. 319 CrPC is made out. The court below did not consider the facts and evidence in correct perspective and without discussing or considering the position of law, the impugned order has been passed in a mechanical manner. Referring to facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside.