SHAILESH PANDEY Vs. STATE OF U.P.

JUDGEMENT

(1.) Present Criminal Revision has been filed with the prayer to quash the impugned judgment and order dated 4.11.2019 passed by the Additional Sessions Judge/Fast Track Court-IInd, Basti in Sessions Trial No. 230 of 2004 (State Vs. Subhash Mishra and others) by which the revisionists have been summoned to face trial for the offence under Section 363, 364, 302, 201 IPC on the application under Section 319 Cr.P.C. Further prayer has been made to stay the operation and effect of judgment and order dated 4.11.2019.

(2.) Heard Sri Dileep Kumar, learned Sr. Advocate assisted by Sri Muktesh Singh for the revisionists, Sr. H. N. Singh, learned Sr. Advocate assisted by Sri Anand Kumar Singh, Advocate for the opposite party no. 2 and learned A.G.A.

(3.) Submission of learned Sr. Advocate appearing for the revisionists is that impunged order passed on the application under Section 319 Cr.P.C. is illegal and without applying judicial mind. Revisionists were not named in the FIR. Name of the revisionists surfaced during investigation on the application of the informant/opposite party no. 2. Referring to the statement of the witnesses recorded twice during investigation Learned Sr. Advocate appearing for the revisionists also argued that star witness P.W.-2 Chandra Prakash has not disclosed the involvement of the present revisionists in it. P.W.-1 and P.W.-3 are not eye account witnesses. Incident is said to have taken place in the year 2003. Dead body of the deceased was received within the territorial jurisdiction of Police Station Chhavani, district Basti. In the evening inquest report was not prepared and two constables were deputed to supervise the dead body of the deceased. It is further submitted that in the night concerned itself informant lodged an FIR at Police Station Parsarampur district Basti for the offence under Section 363 IPC. Informant and some of the witnesses cited in the FIR lodged at Police Station Parsarampur also reached in the morning at the place where Inquest Report was being prepared, as is clear from the Inquest Report. It is also argued that in the meantime one application had been moved on 17.12.2003 by informant/opposite party no. 2 disclosing the name of the revisionists also as accused in commission of the present offence. FIR lodged at Police Station Chhavani for the offence under Section 279 and 304-A IPC was merged in the FIR lodged at Police Station Parasrampur and case was converted into the offence under Section 302 IPC. Referring to annexure no. 7, 8, 9 and 10 learned Sr. Advocate appearing for the revisionists also argued that only suspicion was shown against the revisionists about their involvement in the present matter. No concrete/cogent evidence was collected by the Investigating Officer. Independent witnesses interrogated by the Investigating Officer have also shown the presence of revisionists at another place, thus, no charge sheet was submitted against the present revisionists. On submission of charge sheet trial court started against the co-accused and it reached up to the stage of argument after completion of prosecution and defence evidence. Referring to the order sheet maintained before the trial court it is also argued that at one point of time matter was posted for judgment after hearing the parties. Since Presiding Officer was transferred and a new Presiding Officer joined, court again started hearing the argument. During that period, one application was received to the Sessions Judge concerned which was sent to the court concerned. Another application was moved on behalf of the public prosecutor before the court concerned invoking the jurisdiction under Section 319 Cr.P.C. to summon the present revisionists to face the trial. Court concerned after hearing the parties, vide impugned order summoned the revisionists to face trial. Learned counsel appearing for the revisionists also argued that since there was no cogent evidence against the revisionists collected by the Investigating Officer during investigation, therefore, charge sheet was not submitted against them. P.W.-1 and P.W. -3 are not eye account witness. Statement of the P.W.-2 is also based on suspicion only. Thus there was no occasion to summon the revisionists to face trial. It was further argued that summoning order was passed in this matter after a gap of about 14 years against the settled proposition of law. At this juncture, learned counsel for the revisionists also referred to the documents annexed with the application and further argued that while exercising the jurisdiction under Section 319 Cr.P.C. learned trial court has not afforded opportunity of hearing to the revisionists. No satisfaction as required under law was recorded in the impugned order. In support of his submissions learned counsel appearing for the revisionists also placed reliance on the following case laws :