Court No. - 11
Case :- APPLICATION U/S 482 No. - 13937 of 2018 Applicant :- Bhupendra @ Skooter Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shivam Yadav,Akhilesh Singh Counsel for Opposite Party :- G.A.
Hon'ble Salil Kumar Rai,J.
The present application has been filed challenging the order dated 27.3.2018 passed by Additional Sessions Judge/Fast Track Court, Court No. 1, District-Mainpuri whereby the applicant was summoned under Section 319 Criminal Procedure Code, 1973 (hereinafter referred to as, 'Cr.P.C.') as well as to quash the entire proceedings in S.T. No. 145 of 2016, arising out of Case Crime No. 302/34 and 504 I.P.C., Police Station-Dannahar, District-Mainpuri.
The facts of the case are that a first information report was lodged against four persons including the applicant under Section 302/34 I.P.C. by opposite party No. 2, who is the elder brother of the deceased. A perusal of the first information report clearly shows that the presence of the applicant on the spot and his participation in crime was alleged by respondent No. 2. However, when the charge- sheet was filed by the concerned police station, the same was filed only against three accused persons and the applicant was excluded from the same.
During the proceedings in the Trial Court, respondent No. 2 i.e. the complainant was examined as P.W. 1 and during his examination-in-chief, P.W. 1 deposed about the presence of the applicant on the spot and also affirmed the contents of the first information report lodged by him. An application i.e. the paper No. 22-B was filed by the complainant praying that the applicant be summoned under Section 319 Cr.P.C. and the said application has been allowed by the Trial Court vide its order dated 27.3.2018.
The order dated 27.3.2018 has been passed after considering the testimony of prosecution witness No. 1 i.e. the complainant who is the eye-witness of the incident and the elder brother of the deceased.
In support of his argument that the order dated 27.3.2018 is liable to be set aside as the same has been passed mechanically and without any application of mind by the Trial Court, the learned counsel for the petitioner has relied on the judgement of Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 706.
A perusal of the said judgement shows that in the said case the order under Section 319 Cr.P.C. was passed without considering the material available on record and for the said reason, it was set aside by the Apex Court. The said case is different from the present case inasmuch as in the present case the impugned order has been passed by the Trial Court after considering the material available on record and the deposition of P.W. 1, who, as stated earlier, is an eye-witness to the incident. Therefore, the said judgement is not applicable in the present case.
In the circumstances there is no illegality in the order dated 27.3.2018. The order has been passed after due application of mind and after considering the records of the case.
For the aforesaid reason, the application has no merit and is accordingly dismissed.
Order Date :- 30.4.2018 Anurag/-