Court No. - 83
Case :- APPLICATION U/S 482 No. - 13847 of 2021 Applicant :- Haripal Yadav And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Neeraj Srivastava,Subhash Chandra Yadava Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Neeraj Srivastava, Advocate, holding brief of Mr. Subhash Chandra Yadava, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under section 482 Cr. P. C. has been filed challenging charge sheet dated 30.7.2018 submitted in Case Crime No. 0048 of 2018, under Sections 147, 323, 325, 504, 506 IPC and Sections3 (1) (r) and 3 (1) (s) of S.C./S.T. Act, P.S. Tahabarpur, District Azamgarh, Cognizance Taking Order/Summoning Order dated 18.2.2019, passed by Second Additional Special Judge S.C./S.T. Act, Azamgarh in Special Sessions Trial No. 37 of 2019 (State Vs. Mualayam Yadav and others), arising out of above mentioned case crime number, now pending in the Court of Second Additional Special Judge S.C./S.T. Act, Azamgarh.
Record shows that in respect of an incident which is alleged to have occurred on 21.05.2018, a prompt F.I.R. dated 21.05.2018 was lodged by first informant/opposite party 2 Akhilesh Kumar Pasi, which was registered as Case Crime No. 0048 of 2018, under Sections 147, 323, 325, 504, 506 IPC and Section 3 (1) (r) and Section 3 (1) (s) of S.C./S.T. Act, P.S. Tahabarpur, District Azamgarh. In the aforesaid F.I.R. seven persons namely Mukesh, Deepak Yadav, Vishal Yadav, Haripal Yadav (applicants herein) and Mulayam Yadav, Shamsher Yadav and Omprakash Yadav have been nominated as named accused.
Prosecution story as unfolded in F.I.R. states that on 21.5.2018, an incident occurred in which a 5 year old boy was dashed on account of rash and negligent driving by Rahul Yadav and Amit Yadav accused persons assaulted first informant and others on account of which they sustained injuries.
After registration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. Thereafter, injured Girdhari, Bindu, Dileep and Akhilesh were medically examined at Community Health Centre, Tahabarpur, Azamgarh on 21.5.2018. Their medico legal reports are collectively on record as Annexure 2 to the affidavit filed in support of application under Section 482 Cr. P. C. Subsequently, injured Akhilesh and Girdhari were necessarily examined. Their supplementary medico legal reports are also on record at pages 32 and 33 of the paper book. During course of investigation, Investigating Officer recorded statements of first informant, victim, injured and others, who have supported the prosecution story as unfolded in F.I.R. On the basis of aforesaid as well as other material collected by Investigating Officer during course of investigation, which is substantially adverse to applicants, Investigating Officer opined to submit a charge sheet. Accordingly, a charge sheet dated 30.7.2018 was submitted, whereby and whereunder, applicants have been charge sheeted under Sections 147, 323, 325, 504, 506 IPC, Section 3 (1) (r), Section 3 (1) (s) of S.C./S.T. Act and Section 3 (2) (va) S.C./S.T. Act. Upon submission of aforesaid charge sheet, Second Additional Special Judge S.C./S.T. Act by means of Cognizance Taking Order/Summoning Order dated 18.2.2019 passed in Special Sessions Trial No. 37 of 2019 (State Vs. Mulayam Yadav and others) has summoned the accused in aforesaid Special Sessions Trial.
Feeling aggrieved by above, applicants who are charge sheeted accused, have now approached this Court by means of present application under Section 482 Cr. P. C.
Learned counsel for the applicants contends that applicants are innocent. They have been falsely implicated in above mentioned case crime number. Neither in F.I.R. nor in statements of witnesses none of the ingredients of charging Sections of S.C./S.T. Act is satisfied against applicants. Consequently, charge sheet so submitted by Investigating Officer under Sections 3 (1) (r) and 3 (1) (s) of S.C./S.T. Act is illegal. Second Additional Sessions Judge/Special Judge S.C./S.T. Act, Azamgarh while passing Cognizance Taking Order/Summoning Order dated 18.2.2019 has not adverted to this aspect of matter, which has vitiated the same. Consequently, Cognizance Taking Order/Summoning Order dated 18.2.2019 is manifestly illegal. On the aforesaid premise, it is thus urged that present criminal proceedings are not only malicious, but also an abuse of process of Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that during course of investigation, Investigating Officer recorded statements of first informant/injured and other witnesses under Section 161 Cr. P.
C. including the doctor who examined injured who have supported the prosecution story as unfolded in F.I.R. After from above, Investigating Officer also collected other material, which is substantially adverse to applicants. On the basis of above, charge sheet has been submitted against applicants. In the charge sheet so submitted as many as 12 prosecution witnesses have been nominated. It is thus contended that it cannot be said at this stage that prosecution of applicants is false or there is no material to support the prosecution of applicants. He has also placed reliance upon paragraph 37 of judgement in Nupur Talwar Vs. C.B.I. and another, (2012) 11 SCC, 465, wherein it has been observed that at the time of taking cognizance/summoning order Court has to examined that there is sufficient material to summon the accused and not that there is sufficient material for conviction of accused. It is then submitted that charge sheet is outcome of investigation. No defect, irregularity or illegality has been pointed out in investigation of aforesaid case crime number. As investigation could not be dislodged, consequential charge sheet could not be challenged. As such no interference be called for by this Court. Irrespective of above, applicants will still have an opportunity to deny the charges mentioned in charge sheet at the time of framing of charge by Court below. On the aforesaid premise, it is thus urged that no interference be called for by this Court.
Having heard learned counsel for applicants, learned A.G.A. for State upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicants. All the submissions made at the Bar relate to the disputed defence of applicants, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court cannot appraise and appreciate evidence to record a finding one way or the other. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
Present application fails and is liable to be dismissed. It is, accordingly, dismissed.
Order Date :- 13.8.2021 HSM