Court No. - 41
Case :- APPLICATION U/S 482 No. - 36023 of 2019 Applicant :- Santosh And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Prem Chandra Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Bachchoo Lal,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed to set aside the impugned order dated 16.03.2019 passed by XII Additional District and Session Jude, Agra in Session Trial No. 601 of 2017 (Case Crime No.307 of 2017), State Vs. Ziyalal Pathak and Others under Section 364, 302, 201/34, 420, 328, 120B I.P.C., Police Station New Agra, District Agra by which the learned trial court has rejected the objection of the applicants under Section 227 Cr.P.C.
Learned counsel for the applicants contended that against the order dated 02.06.2018 passed in the aforementioned case Smt. Sadhna Pathak has preferred Criminal Revision No.2890 of 2018 and co-accused Ziyalal Pathak filed an application under Section 482 Cr.P.C. No.34683 of 2018 in which the proceeding of case against them has been stayed. The case of applicants are of identical nature. It has further been submitted that the applicants are not named in First Information Report. The F.I.R. was lodged against only Gurudutt Pathak, Arun Agarwal and Kirpal Singh. The name of the applicants came into light in an application moved by informant Sanjay Gupta on 24.04.2017. In that application, it has been mentioned that applicants and co-accused Gurudutt Pathak and Sumit Pathak took away the abductee- Sharda Devi in Swift Desire bearing No. UP-80-DR-8083. Kishan Kumar had seen the applicants and other co-accused taking the abductee- Sharda Devi in car, except this there is no other cogent evidence against the applicants. The dead body of the abductee- Sharda Devi has not been recovered till date, nothing incriminating has been recovered from the possession of the applicants or on their pointing out. The applicants have moved a discharge application on 09.01.2019, which was rejected by the trial court vide order dated 16.03.2019. The order of trial court is not in accordance with law. In fact no offence is made out against the applicants.
On the other hand, learned A.G.A. argued that charge has been framed against the applicants on 29.08.2018 and after framing charge, the applicants moved a discharge application, which was not legally maintainable. It has further been argued that the name of the applicants came into light during investigation in the application moved by the informant. There is evidence of last seen against the applicants. Kishan Kumar has clearly stated in his statement recorded under Section 161 Cr.P.C. that the applicants and other co-accused, i.e. Gurudutt Pathak and Sumit Pathak took away the abductee- Sharda Devi in the Swift Desire car bearing No. UP-70-DR-8083. Thereafter, whereabouts of the abductee- Sharda Devi is not known. The name of Smt. Sadhana Pathak and Ziyalal Pathak is said to come in the confessional statement of accused.
While the name of applicants came into light in the application of informant dated 24.04.2017, there is evidence of last seen against the applicants. The learned trial court after considering entire evidence available on record has framed the charge against the applicants. There is no illegality or irregularity in the impugned order.
A perusal of the record shows that the name of applicants came into light in the application dated 24.04.2017 moved by informant- Sanjay Gupta in which it has been mentioned that the applicants and two other co-accused taken away the abductee- Sharda Devi in their Swift Desire Car. Applicant- Santosh was the driver of that car. Kishan Kumar is the witness, who had seen the applicants and two other co-accused taking away abductee- Sharda Devi in Swift Desire car, thereafter the whereabouts of Sharda Devi is not known.
According to the impugned order, in this case, charge has been framed against the applicants on 29.08.2018, after framing charge the applicants have moved a discharge application, which was rejected by the trial court vide order dated 16.03.2019. The name of the applicants came into light in the application of informant. Kishan Kumar had seen the applicants and two other co-accused taking away abductee- Sharda Devi in the Swift Desire car, thereafter the whereabouts of Sharda Devi is not known.
Considering the facts and circumstances of the case, I do not find any ground to set aside the impugned order dated 16.03.2019 passed in the aforementioned case. Therefore, the prayer for setting aside the same is hereby refused.
The application is accordingly, dismissed.
Order Date :- 26.9.2019 Saif