Court No. - 67
Case :- CRIMINAL REVISION No. - 730 of 2019 Revisionist :- Brijraj Singh Opposite Party :- State Of U.P.
Counsel for Revisionist :- Sant Sharan Upadhyay Counsel for Opposite Party :- G.A.,Deepak Dubey
Hon'ble Rahul Chaturvedi,J.
Heard Sri Yash Dev Upadhyay assisted by Ms. Sahdna Upadhyay,learned counsel for the revisionist, Sri Deepak Dubey, learned counsel for the opposite party no. 2, learned AGA and perused the record.
The instant revision is targeted against the order dated 31.01.2019, framing of the charge against revisionist u/s 147, 148, 302 read with section 149, 504 IPC and section Criminal Law Amendment Act, passed by Additional District and Session Judge, Court No. 1, Etawah in S.T. No. 215 of 2018 arising out of case crime no. 09/2015, P.S. Basrehar, District Etawah.
Submission made by learned counsel for the revisionist that the revisionist is one of eight named accused persons against whom allegation of unlawful assembly in furtherance of common object, rioting, murder was alleged. It is further submitted that the role attributing to the revisionist is not of causing fatal injury to the deceased. He has fired shot upon the deceased but the same was missed. It is further contended that after lodging the FIR the police after holding investigation into the matter submitted charge sheet only against six persons, dropping the name of the revisionist. However, in exercise of power u/s 319 Cr.P.C. vide order dated 16.05.2018, the revisionist was summoned to face trial u/s 147, 148, 149, 302, 504 IPC and 7 Criminal Law Amendment Act and when the same was challenged by means of Criminal Revision No. 1786 of 2018 the co-ordinate bench of this court vide order dated 30.05.2018 dismissed the revision in limini and eventually, vide order dated 23.1.2019 the revisionist was bailed out.
The revisionist is assailing the order of learned District and Sessions Judge, Court No. 1 dated 31.1.2019 by which the charges were framed against him without considering the circumstantial evidence on record and oral, documentary and electronic evidence and phone call record and no charge u/s 302/149 IPC could be framed. It was further argued that Sundar Lal one of the witnesses has given an affidavit that he would an eye witness of the incident and cannot say with certainty that who has fired the vital shot on the deceased. It is further submitted that the complainant has falsely implicated the revisionist. It has lastly been submitted that the charges framed are dehors of the material collected by the police during investigation.
Per contra, learned AGA and Sri Deepak Dubey, learned counsel for the opposite party no. 2 has drawn the attention of the court to the provision of Section 464 Cr.P.C. which provides:-
"464. Effect of omission to frame, or absence of, or error in, charge.
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
After hearing the rival submission, I am of the considered view that this is not the stage where this Court would exercise its revisional power u/s 397, 401 Cr.P.C. in dis the order impugned the scheme of Cr.P.C. is broad based and would take care of any of the eventuality.
Thus, I do not find any good reason to interfere in this matter at this stage. Accordingly, the present revision stands rejected.
Order Date :- 28.2.2019 Nisha