Court No. - 49
Case :- APPLICATION U/S 482 No. - 29092 of 2018 Applicant :- Bali Hasan And 2 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Krishna Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed against the order dated 07.06.2018, by which the discharge application filed by the applicants has been rejected.
Learned counsel for the applicants submits that insofar the offence has been alleged under Section 326 IPC, there is no allegation or material available on the prosecution filed to establish that a grievous hurt (in the nature of prevention of hearing of one ear of the injured witness), was caused by means of any instrument used for shooting, stabbing or cutting, or any instrument that may be used as a weapon of offence and is likely to cause death. In this regard, it is submitted that the entire material that has come on record only alleges that the applicants had assaulted the victim with fists and kicks.
In view of the above, it is submitted that ingredients of offence under Section 326 IPC do not exist and the learned court below has erred in rejecting the discharge application without due consideration of entire material on the prosecution file, solely under the influence of the facts that the applicants had already been summoned, amongst others for offence alleged under section 326 I.P.C.
Sri Ankit Srivastava, learned AGA on the other submits that it would remain the matter of evidence during trial and in such matter no final determination could be made at this stage.
Having considered the arguments advanced by learned counsel for the parties, while it cannot be denied that the final conclusion as to the facts may be reached upon evidence during trial, however, it also cannot be disputed that the basic ingredients of offence for which any accused must stand trial must stand made out at the stage of taking cognizance and certainly at the stage of deciding the discharge application and framing of charges. Such satisfaction may arise on the basis of perusal of the case diary material.
Insofar as it appears that the submission advanced by learned counsel for the applicants has some force that the injuries were alleged to have caused by fists and kicks and there is force in the submission that there is no allegation of such injury having been caused by any instrument or weapon of assault, the impugned order dated 07.06.2018 cannot be sustained. The same is hereby set aside. The matter is remitted to the learned court below to examine the same afresh in accordance with law, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order. Insofar as the other offence as alleged are concerned, the application claiming discharge application was rightly rejected. The order is maintained, to that extent.
With the aforesaid observations, the instant application is disposed of.
Order Date :- 23.8.2018 Lbm/-