PRAMOD KUMAR BHARGAVA Vs. STATE OF U P

JUDGEMENT

(1.) -This application has been moved by the applicant-Pramod Kumar Bhargava with a prayer to set aside the order dated 1.8.2006 passed by the learned C.J.M., Agra in Misc. Case No. 52 of 2006 whereby the learned C.J.M. concerned has refused to summon the O. P. No. 2, B. D. Agarwal, O. P. No. 3, Nanak Chand Agarwal and O. P. No. 4 Surendra Singh as accused in Case Crime No. 319 of 2002 connected with Case Crime No. 320 of 2002 under Sections 147, 148, 149, 302, 307, I.P.C. and 7 Criminal Law Amendment Act, P. S. Sikandra district Agra.

(2.) THE facts of the case in brief are that Sri S. S. Chauhan, Sub-Inspector of P. S. Sikandara district Agra lodged an F.I.R. on 11.6.2002 at 7 p.m. in Case Crime No. 319 of 2007 under Sections 147, 148, 149, 307, 302, I.P.C. and 7 Criminal Law Amendment Act, P. S. Sikandara district Agra in respect of the incident which had occurred on 11.6.2002 at about 5.30 p.m. against the applicant, co-accused Sunil Kumar, Rafique Ahmad, Rajesh Kumar, Nawal Kishore, Prashant Kumar Tiwari, Laxman Das, Rajesh Kumar Gupta and Narendra Kumar as party No. 1 and against O. P. No. 2, B. D. Agarwal, O. P. No. 3, Nanak Chand Agarwal, O. Ps. Surendra Singh, Bahadur Singh Chauhan, Siya Ram, Vinod Yadav, Pratap Komal Swaroop Sharma, Mallu Sheikh Phalwan and 7 or 8 other miscreants as party No. 2. On the same day, one report was lodged by the applicant at P. S. Sikandara district Agra in respect of the same incident, according to the F.I.R. lodged by the Sub-Inspector Sri S. S. Chauhan, both the parties discharges shots on each other in respect of the dispute over a land, from the side of the first party, i.e., the applicant one Laxman sustained injuries and from the side of the second party, i.e., O. P. Nos. 2 to 4 one Chhotey lost his life on account of the gun shot injury. THE F.I.R. was also lodged in Case Crime No. 320 of 2002 under Section 25A, Arms Act at P. S. Sikandara. Subsequently, the F.I.R. lodged by Sri S. S. Chauhan, and the applicant were clubbed together because the case of the F.I.R. were in respect of the same incident and investigation was entrusted to the local civil police who recorded the statement of the first informant S. I. Sri S. S. Chauhan, who was then in custody and the statement of Laxman Das and the statement of the witness Nafees Ahmad, witness Prashant Tiwari, witness Sunil Kumar, witness Laxman Das were recorded under Section 164, Cr. P.C. also and the I. O. Sri Narain Singh Rana, came to the conclusion by a report dated 30.4.2004 that O. P. Nos. 2 to 4 also involved in the commission of the alleged offence, they were absconding. THEreafter, the investigation of this case was transferred to C.B.C.I.D. who recorded the statement of the witnesses who stated that O. P. Nos. 2 to 4 actively participated in the commission of the alleged offence, but O. P. No. 2 B. D. Agarwal moved an application to the Director of C.B.C.I.D., Lucknow mentioning there that he was not present at the place of occurrence and O. P. Nos. 3 and 4 were also not present at the alleged place of occurrence, in support of the plea of alibi, statement of witness were recorded relying upon the same the I. O. did not submit the charge-sheet against O. P. Nos. 2, 3 and 4 whereas charge-sheet No. 6 of 2006 dated 12.5.2006 was submitted against an applicant and other as the first party. THE charge-sheet No. 6A of 2006 and 7 of 2006 dated 12.5.2006 was submitted against the accused persons of second party excluding O. P. Nos. 2, 3 and 4 on the basis of the above mentioned charge-sheet submitted by the I. O. THEreafter, the applicant moved an application in the Court of learned First Additional Chief Judicial Magistrate, Agra, who were not charge-sheeted, the same was rejected by the learned C.J.M., Agra on 1.8.2006, being aggrieved from the order dated 1.8.2006, the applicant has filed the present application invoking the jurisdiction of this Court under Section 482, Cr. P.C.

(3.) IN reply to the above contention it is submitted by the learned A.G.A. and the learned counsel for O. P. Nos. 2, 3 and 4 that :