HARVEER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard the learned counsel for the petitioner, Sri Sujan Singh and learned Senior counsel, Sri A.B.L. Gaur assisted by Sri Saurabh Gaur, learned counsel for the O.P. No.2 and learned A.G.A.

(2.) This criminal writ petition has been filed with the prayer that a writ of certiorari be issued quashing the order dated 02/05/2009 passed by the learned Additional Sessions Judge, Court No. 5, Agra in Criminal Revision No. 316 of 2008 (Netra Pal Singh vs State of U.P. and another), whereby allowing the revision, the order dated 14/10/2008 passed by the trial Court in criminal Case No. 1832 of 2004 (State vs Harvir Singh), under Section 286 IPC was set aside and a direction was given to the lower Court to commit the case to the Court of Sessions according to law.

(3.) The facts in brief as given in the petition are as follows. The petitioner was married to the daughter of respondent no. 2, Smt. Asha on 01/12/2002. After few days of marriage when she went home, she started making complaint about quality of food and furniture used by the family of petitioner. At the time of marriage, the petitioner was working as an engineer in Indian Air Force and after getting married, he had to join back his service in Jammu, leaving his wife in the house of respondent no. 2. The parents of the petitioner had apprised the petitioner that his wife used to leave home without informing and would return quite late at night, and would not reply when asked as to where had she gone, instead she would quarrel with his parents. She lodged an F.I.R. against the petitioner and his family members under sections 498 A, 323, 504 and 506 IPC at PS Sikandra, District Agra, which was investigated and a final report was submitted. On 26/7/2004 when his wife was admitted in hospital for delivery, respondent no. 2 reached the hospital and started misbehaving with his parents and due to manhandling, the gun of his father, which was loaded, got fired accidentally. The respondent no. 2, with an ulterior motive, lodged an F.I.R. against the petitioner on 26/07/2004 stating therein that when the first informant along with his son, Neeraj and Jitendra went to military hospital to visit Smt. Asha (his daughter), the family members of the petitioner did not allow them to meet her. The first informant came out of the hospital and at the same time, the father of the petitioner also came behind him and called petitioner on phone. After some time the petitioner along with another person reached hospital with a gun and fired upon the first informant, but he survived. It is further mentioned in the F.I.R. that two military personnel, who were present at the gate, also sustained pellet injuries along with the son of the first informant, Jitendra. Injury reports dated 26/07/2004 and 27/07/2004 were also annexed. After investigation the police submitted charge sheet under Section 285 IPC. The first informant as well as the two army personnel had filed affidavits before the learned Additional Sessions Judge, Agra stating therein that the alleged fire had happened accidentally without any intention to kill anyone and that the parties had entered into a compromise. The petitioner had surrendered before the lower Court even before submission of charge- sheet and was enlarged on bail under Section 307 IPC, with an observation that "no firearm injury received in the incident which took place between the members themselves". The petitioner filed an application before learned ACJM, Court No. 35, Agra for discharging the petitioner, as there was no ample evidence against him to frame charge. The learned trial Court framed charges vide order dated 6.4.2008 under section 286 IPC and under Section 25/27 of Arms Act only. Against the said order dated 06/04/2006, the petitioner filed a Criminal Revision No. 81 of 2006, but the same was rejected. After framing of charge against the petitioner, two witnesses from the side of prosecution namely Neeraj Singh (PW 1) and first informant, Nathan Pal Singh (PW 2) were produced, on the basis of whose statements an application under Section 216 Cr.P.C. was moved by the complainant before learned C.J.M., Agra for alteration of charge, which was rejected, and it was held that no offence was found to have been made out under section 307 IPC. Aggrieved by that order, a Criminal Revision No. 316 of 2008 was preferred in the Court of Additional Sessions Judge, Court No. 5, Agra by respondent no. 2, and the said Court, without looking into the contradictions in the statements and the contents of F.I.R., illegally allowed the revision and directed the lower Court to commit the case to the Court of Sessions for trial. The said order is bad in law, against the material available on record. The Court did not consider that the first informant and two army personnel had filed affidavits during investigation, stating clearly that gunshot had got accidentally fired without intention to kill anyone, nor did the Court consider the medical report of the injured, in which no opinion was given that injuries were caused by fire arm. There were contradictions in the statements of PW 1 and PW 2 and the F.I.R. version. On a bare perusal of statements of PW 1 and PW 2, no offence under section 307 IPC was made out against the petitioner, but the learned revisional Court solely on the basis of the examination-in-chief of these witnesses, altered the charge from Section 286 IPC to Section 307 IPC and directed that the case be committed to the Court of Sessions, which is bad in law. The revisional Court ought to have taken the opinion of expert doctors who had prepared the injury memo, before passing the impugned order. The said order deserves to be set aside.