MAHABIR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) MAHABIR Singh, Bhanwar Singh, Onkari and Pooran have filed this application under Section 482, Cr. P.C. with the prayer that the order dated 6.12.1990 committing them to the Court of Sessions in connection with the Crime No. 95 of 1989 under Section 302/120B, I.P.C. of P. S. Iradat Nagar, District Agra be quashed. It has been further prayed that the proceedings of Sessions Trial No. 338 of 1990, State v. MAHABIR Singh and others, under Section 302/120B, I.P.C, pending in the Court of VII Additional Sessions Judge. Agra which are based on the said commitment order, be also quashed.

(2.) THE prosecution case as disclosed in the F.I.R. is that there was enmity between Chandra Bhan and Mahabir over some dispute of land on 6.11.1989 a Panchayat was going to be held to resolve the dispute and in that connection first informant Amar Kant Tyagi and his brother Jagdish Kant and Ashok were going to join the Panchayat. While they were proceeding towards the venue of the Panchayat they were stopped by Bishambhar Singh near his house to have a talk. Sri Niwas and Mohan also arrived there and were having a talk amongst themselves. In the meantime at about 8 a.m. accused Ghoore, Chhitariya armed with rifles and masta armed with a gun appeared on the roof of applicant Onkari. On the exhortation of Masta, accused fired. THE shot fired by Chhitariya hit Ashok and the shot fired by Bhoore hit Jagdish. THE injured were rushed to hospital in a precarious condition. Later on both Ashok and Jagdish Kant succumbed to their injuries. An F.I.R. was lodged by Amar Kant Tyagi at P. S. Iradat Nagar and a case under Section 307, I.P.C. was registered as Crime No. 95 of 1989. On the death of Ashok and Jagdish Kant the case was converted to one under Section 302, I.P.C.

(3.) THE learned counsel for the applicants has submitted that under the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the case and not the accused is committed to the Court of Sessions. THE learned counsel for the applicant has submitted that the case was committed to the Court of Sessions on 8.4.1990 by the learned Magistrate and gave rise to S. T. No. 92 of 1990 in which Ghoore, Masta and Chhitariya are facing trial. THEre was subsequent order of commitment dated 6.12.1990 giving rise to S. T. No. 338 of 1990 In which the applicants are facing trial, is without jurisdiction. THE learned counsel for the applicants has relied on the case of Joginder Singh and another v. State of Punjab and another, AIR 1979 SC 339. In the above case the Supreme Court has drawn a distinction between the provisions of Section 207A of the Code of Criminal Procedure, 1898 and the provisions of Section 209 of the present Code. In the case of Joginder Singh (supra) the Supreme Court was interpreting the words "any person not being the accused" occurring in Section 319, Cr. P.C. While interpreting the provisions of Section 319, Cr. P.C, the Supreme Court was interpreting the words "any person not being the accused" occurring in Section 319, Cr. P.C. While interpreting the provisions of Section 319, Cr. P.C, the Supreme Court observed :-