Court No. - 51
Case :- APPLICATION U/S 482 No. - 31517 of 2019 Applicant :- Prabhat And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sunil Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J.
Learned counsel for the applicants has contended that applicants have been falsely implicated. He further contended that in the matter co-accused another bench of this Court has granted indulgence vide order dated 10.05.2019. The relevant portion of the said order reads as under:-
"Learned counsel for the applicant submits that though the statements of PW-2 and PW-3 are nothing more than reiteration of the statement of PW-1 which, in turn, is a mere reiteration of the FIR allegations, at present, no strong satisfaction could have been reached that the present applicant is liable to be tried along with the main accused Raj Kumar and Jeet Singh, who are standing trial on the basis of the charge sheet submitted by the police. It is thus submitted that while the applicant is being introduced as an accused person on the basis of circumstantial evidence of having been spotted near the dead body in the morning after the night when offence has been committed, the main accused has been charged on the basis of evidence found to during police investigation. At present, there is no evidence received by the learned court below to link the present applicant with the main accused Raj Kumar and Jeet Singh. Therefore, in effect, the applicant is being prosecuted as an accused in the alternate to the main charge, in the garb of power under Section 319 Cr.P.C. which can never be allowed to be done."
In view of the facts and circumstances, a case for grant of indulgence is made out.
Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A. Issue notice to opposite party no.2 returnable at an early date.
Opposite parties may file their counter affidavits within four weeks. Rejoinder affidavit may be filed within three weeks thereafter.
List thereafter.
Till the next date of listing, the operation and effect of the orders dated 24.09.2018 and 16.11.2018 passed by Additional Session Judge, S.T. No. 1170 of 2016, arising out of Case Crime No. 56 of 2016, under Section 147, 302/149 IPC, P.S. Ramraj, District Muzaffar Nagar shall remain stayed.
Order Date :- 26.8.2019 Ujjawal