RAM LOCHAN YADAV Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. This application has been filed by the applicant Ram Lochan Yadav with a prayer to quash the order dated 16-7-2007 passed by the learned Chief Judicial, Magistrate, Allahabad in Case Crime No. 129 of 2005 under Sections 148, 149, 302 and 307, I. P. C. and 7 Criminal Law Amendment Act P. S. Jhunsi District Allahabad whereby Non Bailable warrant has been issued. The second prayer is that a direction for investigation by the C. B. C. I. D. or by any other independent agency of the State of U. P. may be issued.

(2.) THE fact of the case in brief are that the F. I. R. of this case has been lodged by O. P. No. 2 Ganesh Yadav on 10-7-2005 at 10. 05 a. m. against the applicant, co-accused Vijma Yadav, co-accused Gyan Yadav, co- accused Mool Chand and two unknown miscreants alleging therein that on 10-7-2005 at about 9. 35 a. m. the applicant and other co-accused persons armed with their respective weapons came at the place of occurrence on two vehicles, one of them was Bolero and second was Qualys, at the exhortation of the co-accused Vijma Yadav, the applicant who was armed with automatic fire-arm, and co-accused Gyan Yadav and Mool Chand who were also armed with the fire-arms, discharged shots indiscriminately consequently the deceased Lalla Gupta lost his life instantaneously and the deceased Sunil Yadav succumbed to his injuries on the way to the hospital and two persons namely Hikmat and Bablu also sustained injuries in the said incident. THE applicant has not surrendered in the present case neither he could be arrested by the police concerned. THE officer-in-charge of the police station Jhunsi District Allahabad moved an application dated 14-7-2007 in the Court of learned C. J. M. , Allahabad mentioning therein that attempts have been made to arrest the applicant, co-accused Gyan Chand Yadav and co- accused Mool Chand Yadav who are absconding, but they could not be arrested, they are avoiding their arrest. THErefore, non-bailable warrants and process under Section 482 (sic 82), Cr. P. C. may be issued, that application has been allowed in part and the learned C. J. M. , Allahabad issued non-bailable warrants vide order dated 16-7-2007, being aggrieved from the order dated 16-7-2007, the present application has been filed.

(3.) IT is further contended that O. P. No. 2 Ganesh Yadav who lodged the F. I. R. is a hardened criminal, the order of externment under the U. P. Control of Goondas Act has been passed against him his son Ashok Yadav is also a history-sheeter and Gangster. He is involved in nine criminal cases. The applicant's brother-in-law late Jawahar Yadav was elected M. L. A. in the year 1993 from Jhunsi Constituency Allahabad but he was murdered on 13-8-1996 in the area of Civil Lines, Allahabad, in that case Sri Udai Bhan Karwaria, his brother Kapil Muni Karwaria, Surya Bhan Karwaria and his uncle Maula (now dead) were nominated as accused in which charge-sheet has been submitted by C. B. C. I. D. , Allahabad on 20-1- 2004, the same is pending in the Court of Special C. J. M. , Allahabad, its proceedings have been stayed in Criminal Revision No. 821 of 2004 by Hon'ble High Court filed by Sri Udai Bhan Karwaria M. L. A. , but this revision was dismissed. Thereafter a petition under Section 482, Cr. P. C. as Criminal Misc. Application No. 4950 of 2004 has been filed before this Court, the eye- witness of this case namely Kallan Yadav has also been done to death on 13-8-1996. Now due to change of the Government in U. P. the proceedings have been initiated against the applicant and other co-accused persons and his family and the officer in- charge of the P. S. Jhunsi has filed the application to issue non-bailable warrant and process under Section 82, Cr. P. C. in the Court of C. J. M. , Allahabad, the same has been partly allowed on 16-7-2007. The impugned order dated 16-7-2007 passed by the learned C. J. M. , Allahabad is illegal because it is not a reasoned order and no reason to believe has been mentioned by the learned C. J. M. Even no substance of accusation made in the case diary to show that the police party has made any effort to make the arrest of the applicant and the applicant is not traceable or absconding has been mentioned in the impugned order. The impugned order is judicial order, which does not contain the reason, it is an illegal order which deserves to be quashed, if support if this contention the learned Counsel for the applicant cited the following cases : (1) JT 2004 (2) SC 172, State of Orissa v. Dhani Ram Lohar. (2) JT 2004 (5) SC 482, State of Punjab v. Bhag Singh. (3) JT 2005 (2) SC 34, Panchanan Mishra v. Digamber Mishra. (4) JT 2005 (2) SC 267, State of Hariyana v. Ram Pal. (5) JT 2005 (2) SC 443, M/s Manglore Ganesh Bidi Works v. Comr.