Court No. - 25
Case :- APPLICATION U/S 482 No. - 2713 of 2019
Applicant :- Golden @ Khursheed And 2 Ors
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Mohd. Samiuzzaman Khan
Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire criminal proceeding of Case No. 6000 of 2018 (State Vs. Mohd. Irfan and others) arising out of Case Crime No. 708 of 2018, under Sections 147, 148, 149, 307, 427, 323, 504, 506, 452, 436, 353, 332 I.P.C., Section 7 Criminal Law Amendment Act and Section 3/4 Prevention of Public Property Act, Police Station Gulariha, District Gorakhpur as well as charge sheet No. 548 of 2018 dated 12.12.2018 and cognizance order dated 19.12.2018, pending in the Court of Additional Chief Judicial Magistrate, Court No. 4, District Gorakhpur.
Learned counsel for the applicant argued that the report itself reveals that owning to accident applicant Golden @ Khursheed was electrocuted, due to which this occurrence took place by a mob; applicant was taken to hospital and was treated thereat, but subsequently he has been made accused in charge sheet; rest two applicants are old aged person having no concern with the occurrence, but in a routine manner they have been made accused; the complainant / the injured were not in position to identify the accused persons, who did this offence nor any identification was made, whereas the report was against the mob. Hence, this application.
Learned A.G.A. has vehemently opposed the argument with the contention that investigation resulted submission of charge sheet and the cognizance over it has been taken.
From the perusal of First Information Report, it is apparent that it was got lodged instantly at the Police Station concerned against 24 named accused persons along with other unknown persons, who were about 150 to 200, and the present applicants are named accused in this First Information Report. The Investigation occurred, in which statement of injured police personnel were recorded and the injured persons including the informant i.e. Home Guard Shyam Bihari, Ramesh and Sub Inspector Dileep Kumar Chaudhary in their statements recorded under Section 161 Cr.P.C. has specifically given the name of the accused persons, who exhorted for this riot and who were involved in this riot and under joint mens rea attacked over Sub Inspector Dileep Kumar Chaudhary, Head Constable Harish Chand Yadav and assaulted badly to them. The names of eight persons including the present three applicants have specifically been given by all these three injured persons in their statement recorded under Section 161 Cr.P.C. Those three injured persons were instantly got medically examined and treated at Medical Centres and they were with injuries over their person. So far as the injury of electrocution of applicant No. 1 is concerned, it is there in the medical report but this examination was made after seven days of the occurrence and he was not under such injury of electrocution that he could not commit the above offence, as was said by the injured in their statement. Hence, the factual aspect of giving assault and injury under joint mens rea and damaging the public property by doing assault and attack over police outpost and police personnel including the damage by fire to public property is there in the case diary. Further, it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. in view of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered in this proceeding.
Considering the facts and circumstances of the case, I do not find any ground to quash the criminal proceedings passed in the aforementioned case, therefore, the prayer for quashing the same is hereby refused.
However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within four weeks from today and apply for bail, then the bail application of the applicants be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants.
However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 22.1.2019 NS