SUNIL SOLANKI Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. Sunil Solanki, the revisionist filed an application under Section 156 (3) Cr. P. C. before C. J. M. , Bulandshahar with the allegations that on 11-2-2007 at 9. 30 p. m. the revisionist/applicant Sunil Solanki was standing out side the door of his house alongwith Shafeeq, Chetan Tyagi, Akhilesh Tyagi and was chatting with them. At that time a marriage procession was passing from the front of his house. At 9. 40 p. m. the same day Mozzam Ali alongwith two other persons, who can be identified by the applicant, came to the door of the house of the applicant vetuparizing the applicant. They accosted the applicant that the applicant is making endeavours to get his brother released and that he will not be spared. By making such threats Mozzam Ali fired at the applicant from his country made pistol which shot caused injuries to Shafeeq in his abdomen. Shafeeq sustaining the gun shot injury fell down on the spot. The two accompanied accused persons fired at the applicant but by providence he escaped unhurt and the fire was lodged in the shutter of a nearby shop. The incident was witnessed by Shageer, Sobhit and many other neighbours. Shafeeq was rushed to the Government hospital from where he was referred to the district hospital for management of his injury where he was admitted in the hospital. The revisionist/applicant Sunil Solanki endeavored to get a FIR registered but his attempt failed. He, therefore, dispatched a typed application before S. S. P. Bulandshahar through registered post but even then his FIR was not registered. With such facts, the applicant had approached C. J. M. Bulandshahar seeking a direction from his under Chapter XII of Code of Criminal Procedure, under Section 156 (3) Cr. P. C, directing to the police to register the FIR of the applicant and investigate the matter.

(2.) THE said application of the revisionist was rejected by the C. J. M. , Bulandshahar by passing the impugned order dated 27-4- 2007 on the ground that no injury report was filed and from the averments made, it transpires that there was previous enmity and from the allegations the offence of attempt to commit murder is not disclosed. By holding thus the application of the applicant/revisionist under Section 156 (3) Cr. P. C. was rejected by C. J. M. , Bulandshahar which order dated 27-4-2007 is under challenge in the instant revision filed by the victim Sunil Solanki.

(3.) THUS from the facts a clear case of attempt to murder is disclosed against the accused persons. The impugned order passed by C. J. M. , Bulandshahar is wholly deplorable as it is against the factual Matrix of the case and the allegation levelled. For making out of an offence under Section 307 I. P. C. , causing of injury is not sine qua non. It is the intention to murder, which has to be seen. From the allegations levelled in the application under Section 156 (3) Cr. P. C, the intention to murder is well perceptible. Chief Judicial Magistrate did not addressed himself to the correct proposition of law nor he understood the facts of the case and without any application of mind he has passed the impugned order. He should have thought of the person who had sustained gun shot injury and in respect of whom it s mentioned that for management of his injury even he was transported to district hospital. If the injury report was not produced before C. J. M. , Bulandshahar, he should have called for injury report from the hospital or have directed the applicant/revisionist to produce the injury report. Normally from heuristic experience, I know that in most of the matters under Section 156 (3) Cr. P. C. , the Magistrate called for a report from the police. On the facts of the case, C. J. M. , Bulandshahar even not thought it proper to call for the medical examination report or giving opportunity to the applicant/revisionist to produce the said injury report. This conduct of Chief Judicial Magistrate is deplorable and wholly mala fide and illegal. Moreover production of injury report was not at all necessary for directing registration of FIR and investigation into the offence as the allegations ex facie made out offence under Section 307 I. P. C. without any ambiguity. From where the C. J. M. has found the fact that there was no intention to murder is not known. The said finding by C. J. M. is against the material on record and is purely hypothetical and vexatiously illegal. Chief Judicial Magistrate has committed a blatent error of law and has done unpardonable injustice to the injured and the informant. His lack of sensitivity and utter callous attitude has left the accused of murderous assault to go scot free to this day. The impugned order, therefore, is wholly illegal and cannot be sustained at all.