Heard learned counsel for the applicant, Shri Ram Chandra Solanki and Shri Sanjay Pathak, learned counsel for O.P. No.2. and learned AGA for the State and perused the record.
This application under Section 482 Cr.PC has been filed by the applicant with the prayer to quash the summoning order dated 8.3.2021 passed by C.J.M, Aligarh in case No. 57/27/2021, State Vs. Mukhtar Zaidi & others, arising out of case crime no. 129/2020, under section 147, 342, 323, 307, 506 I.P.C. P.S. Civil Lines, District Aligarh and entire proceedings of the aforementioned case pending in the court of C.J.M. Aligarh.
As per the allegations made in the FIR and in the statement recorded under section 161 CR.P.C., it is alleged that on 8.3.2020 at about 1.30 p.m. the applicant tried to kill the victim by throttling and also assaulted her by kicks and fists. On account of assault made by the applicant the victim suffered injuries and has been medically examined. Even in the statement recorded under section 161 Cr.P.C. specific allegation of assault and trying to kill the victim by throttling has been made by the victim against the applicant. The investigating Officer after concluding the investigation submitted final report against the applicant on 2.6.2020. On the said final report, learned magistrate issued notices to the first informant and on receiving the notice, O.P. No.2 filed protest petition and prayed that the final report be rejected and the applicant be summoned to face trial. Learned magistrate vide his order dated 8.3.2021 rejected the final report and summoned the applicant to face trial in accordance to the provision of section 190(1)(b) Cr.P.C. Aggrieved by the said order the applicant filed the present application under section 482 Cr.P.C.
Learned counsel for the applicant has submitted that from the averments made in the F.I.R. as well as in the statement recorded under section 161 Cr.P.C. no offence u/s 307 I.P.C. is made out against the applicant.
Learned counsel for the applicant has next submitted that learned magistrate while summoning the applicant has relied upon the affidavits filed by the witnesses as such summoning the applicant in accordance to the provision of section 190(1)(b) Cr.P.C is bad in the eye of law and is liable to be set-aside.
Per contra, learned AGA as well as learned counsel for for O.P. No.2 has submitted that from the perusal of the allegations made in the FIR as well as the statements recorded under section 161 Cr.P.C. primafacie, an offence under section 307 I.P.C. is clearly made out against the applicant. It is further submitted that the learned magistrate only on the basis of material collected during course of investigation has summoned the applicant to face trial in accordance to the provision of 190(1)(b) Cr.P.C. While passing the order of summoning, the affidavits filed by the witnesses have not been relied upon at all as such the impugned order passed by the court below is just, proper and legal.
Having considered the rival submissions made by learned counsel for parties and the allegations made in the F.I.R. and the statements of the witnesses, I am of the considered opinion that at this stage from the material collected during the course of investigation primafacie offence under section 307 I.P.C. is made out against the applicant. The applicant has been summoned on the basis of evidence collected during course of investigation and learned magistrate has not relied upon the affidavits as such summoning the applicant in accordance to the provision of 190(1)(b) Cr.P.C. is just, proper and legal. The order passed by the learned magistrate does not suffer from any illegality or error of law.
The present application filed under section 482 Cr.P.C. is devoid of merit and it is accordingly dismissed.
Order Date :- 24.8.2021 R