Court No. - 15
Case :- APPLICATION U/S 482 No. - 18804 of 2018 Applicant :- Fasiullah Khan Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Aditya Vardhan Singh Counsel for Opposite Party :- G.A.
Hon'ble Umesh Chandra Srivastava,J.
The instant 482 Cr.P.C. application has been filed with prayer to quash the order dated 11.10.2017 of Additional Chief Judicial Magistrate, court no. 6, Moradabad, in Criminal Case No. 3714 of 2009, arising out of case crime No. 1309 of 2008, under section 323 I.P.C. (State vs. Ishtiyaq), P.S. Katghar, District Moradabad by which the learned Magistrate has refused to summon others as accused under section 319 Cr.P.C.
Heard Shri Aditya Vardhan Singh, learned counsel for the applicant and learned A.G.A. for the State.
Facts giving rise to application in brief are that applicant had lodged an F.I.R. against Ishtiyaq, opposite party no.2 to 5 and 15 to 20 unknown persons levelling allegations that they assaulted him with lathi danda, abused him with filthy languages extended threat of life and looted his cash and jewellery. This incident took place on 17.11.2008 at 12:30 p.m. in respect of which the F.I.R. was lodged against the above mentioned persons under sections 147, 324, 392, 605, 307 I.P.C. under the order of court passed under section 156(3) Cr.P.C.
In the said F.I.R., after investigation, charge-sheet has been filed against Ishtiyaq only under section 323 I.P.C. and he is facing the trial. During trial, after examination-in-chief of the applicant being recorded as P.W.-1, the appellant moved an application under section 319 Cr.P.C. to summon the other named accused. This application was rejected on 23.04.2015 with observation that since cross examination of P.W.-1 is yet to be done and there are 6 more eyewitnesses, including the injured who are ought to be examined, application may be considered after taking sufficient evidence on record.
Applicant had preferred a criminal revision against this order in the Sessions Court which was also dismissed on 18.10.2016. Aggrieved by the above mentioned orders, applicant had filed an application under section 482 Cr.P.C. in this Court being Application U/S 482 No. 6518 of 2017 which was also dismissed on 20.03.2017 with the following order.
"After hearing the learned counsel for the applicant and the learned A.G.A, after perusing the order impugned as well as the averments as contained in the present application, this Court is of the opinion that the learned counsel for the applicant could not point out any good ground which may warrant any interference by this Court in exercise of powers conferred under Section 482 Cr.P.C. for quashing the orders impugned.
Accordingly, the prayer for quashing the orders impugned is refused.
Present application lacks merit and the same is dismissed. "
Applicant moved a second application under section 319 Cr.P.C. to summon the named persons in F.I.R. as accused on the premise that since associates of Istiyaq are creating hindrance in trial as a result of which cross-examination of P.W.-1 is not being possible to be made, the named persons in F.I.R. be summoned as accused and trial be proceeded against them also. This application also met the same fate holding since earlier application under section 319 Cr.P.C. has been rejected with observation that application may be considered after taking sufficient evidence only, and till now only one prosecution witness has been examined and 6 more eyewitnesses are yet to be examined, application may not be considered at this stage. Aggrieved with the same, applicant has filed the present application.
Learned counsel for the applicant has submitted that it is evident from the evidence of P.W.-1 Fasiullah Khan that other persons named in the F.I.R. were also involved in the offence and the role of causing assault has also been attributed to them, the learned Magistrate ought to have summoned them instead of rejecting the application saying prayer for summoning other accused may be considered after taking sufficient evidence on record.
I have gone through the record as well as the order dated 11.10.2017 passed by the learned Magistrate and I find that learned Magistrate is fully correct in rejecting the application. It appears that applicant who is an advocate does not wish to examine other witnesses in court but to get the other named persons in the F.I.R. summoned to be tried along with accused Ishtiyaq. Once the application being rejected by the learned Magistrate saying prayer may be considered after taking sufficient evidence on record and a criminal revision preferred against the rejection order being also dismissed, and application under section 482 Cr.P.C. filed against the orders of the courts below being also dismissed, there was no justification for applicant again moving application with same prayer without examining other witnesses. The act of the applicant moving application again without examining other witnesses cannot be appreciated from any point of view. This being nothing but an abuse of the process of the Court, application is dismissed and applicant is warned that if he makes the same application again without examining at least three witnesses, the same shall be viewed seriously.
In view of above, application is dismissed.
Order Date :- 31.5.2018 Bhanu