Court No. - 14
Case :- CRIMINAL APPEAL No. - 3672 of 2018 Appellant :- Sandeep And 2 Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Nitin Srivastava Counsel for Respondent :- G.A.,Kuldeep Kumar,Vivek Saran
Hon'ble Ifaqat Ali Khan,J.
Heard Sri Nitin Srivastava, learned counsel for the appellants and learned A.G.A.
This appeal is preferred by the appellants to set aside the cognizance order dated 01.05.2018 in Case No. 86 of 2018 and charge-sheet dated 23.03.2018 arising out of case crime no. 42 of 2018, under section 323, 307, 504, 506 IPC and 3 (1) (10) SC/ST act Police Station Pratappur, District Meerut.
Learned counsel for the appellants submitted that in this case FIR was lodged under section 307, 323, 504, 506, 509 IPC and 3(1)(10) of SC/ST Act. In the FIR it was mentioned that Sumit open the fire at Vikas but Vikas and Meena Devi escape. During investigation all the witnesses stated to the I.O. that no sought was fired on anybody. Hence, charge-sheet was submitted by I.O. under section 504, 506, 323 IPC and 3(1)(10) SC/ST Act. Presiding Officer passed the order on the charge-sheet as under:-
"समस्त ककागजकात कका अवललोकन ककयका प्रथम दृश्यतका ससंजकान कका आधकार पयकार्याप्त हहै अत: ससंजकान ललयका जकातका हहै दरर्या रलजस्टर हलो"
But when this order is passed on the order sheet the cognizance is taken under section 307, 504, 506 IPC and 3(1)(10) SC/ST Act.
It is strongly argued by learned counsel for the appellants that appellants are summoned under section 307 without passing any speaking order specially in the case where there is no injury report in the file and the witnesses in their statement under section 161 has specifically stated that no fire was opened at the place of occurrence.
From the perusal of the 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 the applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court at this stage. The disputed defence of the accused cannot be considered at this stage.
Considering the facts and circumstances of the case, I do not find any ground to quash prosecution initiated against the applicants in the aforementioned case, therefore, the prayer for quashing the same is hereby refused.
However, it is directed that if the applicants appear and surrender before the court below within three months from today and applies for bail, their prayer for bail shall 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 judgement 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 three months 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.
After entertained of the bail by trial court appellants are giving liberty to move the application or discharge under section 307 IPC within 15 days and trial Court decide this application within two months by passing the speaking order.
With the aforesaid directions, this appeal is finally disposed of.
Order Date :- 27.11.2018 Swati