Court No. - 49
Case :- APPLICATION U/S 482 No. - 28803 of 2018 Applicant :- Ajay Kumar Singh Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Sanjai Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Second supplementary affidavit filed today, is taken on record.
2. Heard learned counsel for the applicant and learned A.G.A. for the State.
3. The present 482 Cr.P.C. application has been filed to quash the order dated 02.06.2018 passed by the Addl. Session Judge, Court No. 2, Ghazipur in Session Trial No. 245 of 2017 (State Vs. Ashok Singh), arising out of Case Crime No. 255 of 2016, under Sections- 504, 506 I.P.C., Police Station- Kashimabad, District- Ghazipur, by which the learned Court below has rejected the application filed by the applicant who is the informant under Section 193 Cr.P.C.
4. By the aforesaid application, the applicant had sought summoning of Hemant Singh under Section 307 IPC, apparently, in view of the FIR allegation and the statement of the injured who had specifically stated that the fire arm injury had been caused to him by Hemant Singh.
5. In its order, the learned Court below has observed that on perusal of the case diary material and the statements of witness recorded therein, it appears that the fire arm injury had been caused to Ajay Kumar Singh by his son and not by Hemant Singh. On such observation, the application filed by the present applicant has been rejected.
6. Learned Senior Counsel appearing for the applicant submits that in face of the statement of the injured witness it was not open to the learned trial court to draw any different inference, at this stage. Consequently, the learned trial court ought to have allowed the application filed by the applicant and summoned Hemant Singh as an accused person under Section 307 IPC.
7. Sri Ankit Srivastava, learned AGA on the other hand submits that the entire case diary material that has been referred to by the learned Court below is not before this Court inasmuch as other than the statement of the injured witness there are only affidavits that have been brought on record which may not be treated as case diary material.
8. He would therefore submit that at present, it cannot be said that the observation made by the learned Court below upon consideration of the entire case diary material that the fire arm injury was not caused by Hemant Singh but by Anurag Singh, cannot be seen to be perverse.
9. He further submits that in any case, the applicant would have a right to lead evidence during trial and if upon such evidence it appears to the learned Court below that any other person including Hemant Singh is liable to be tried as an accused person, then, in view of the powers of the trial court under Section 319 Cr.P.C., the said person could always be tried, at that stage.
10. Having considered the arguments so advanced by learned counsel for the parties, at present, while no conclusion of fact may be drawn, only on the strength of the material that has been brought on record, it does appear that the observation made by the learned Court below is not perverse insofar as the learned Court below has observed that on perusal of the entire case diary material, it appears that the fire arm injury had not been caused by Hemant Singh. It is so because admittedly, the entire case diary material is not before this Court and there is nothing shown to this Court to doubt as perverse the conclusion drawn by the learned trial court. Therefore, no other conclusion may be drawn at this stage.
11. As to the correctness of the allegation made against Hemant Singh, it would always remain open to the applicant to lead evidence and seek prosecution against that person in accordance with law, at the appropriate stage.
12. With the aforesaid observation, the present application is disposed of.
Order Date :- 5.9.2018 Abhilash