Court No. - 72
Case :- APPLICATION U/S 482 No. - 9184 of 2019 Applicant :- Kripa Ram Opposite Party :- State Of Up And Another Counsel for Applicant :- Manju Savita Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the parties.
2. Short legal submission advanced by learned counsel for the applicant is that undisputedly the charge sheet was submitted against Ram Swaroop, Kriparam and Sunder Kotedar alias Manvendra only under Sections 147, 148, 307/149, 302/149, 504, 506. In that view, it has been submitted, no charge could have been framed under Sections 147, 148, 149, 307/149 or 302/149 in view of the fact that there were only three persons charged for such offence. For an allegation of unlawful assembly, the necessary ingredient for offence is the involvement of five or more persons. Therefore, it has been further submitted that the learned court below has completely erred in framing the charges noted above.
3. Sri Ankit Srivastava, learned AGA has, though tried to defend the order, however, he could not dispute the position of law that for a charge of unlawful assembly, there must necessarily be five or more accused persons against whom such charge may be framed.
4. Though, the matter is being heard at the fresh stage and normally the Court may not pass final orders, however, at present, in view of the legal position, noted above, no useful purpose would be served in issuing notice to opposite party no.2 or waiting for his response, as no issue of fact or case diary material or other argument is being considered.
5. On the other hand, issuance of notice would necessarily involve delay in the trial proceedings as, at present, again in view of the legal position noted above, the trial cannot be permitted to proceed on the charges that stand framed against the present applicant and two others.
6. Accordingly, in the interest of justice and also in the interest of securing speedy and proper trial, the order dated 24.11.2018 is set aside and the matter is remitted to the learned Sessions Court to pass a proper order to frame charge in light of the observations made above. This exercise may be completed, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order. The applicant, who is on bail, undertakes to remain present before the learned court below, and till framing of charge, undertakes not to seek any adjournment.
7. It is further made clear that if the learned court below is of the opinion that if there was unlawful assembly, it may pass appropriate order in that regard and proceed against such persons as well who may be involved in the commission of offence. All other course will also remain open to the learned court below.
8. With the above observations, application is disposed of.
Order Date :- 25.4.2019 S.Chaurasia