Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 1235 of 2019 Petitioner :- Shishupal Balmiki Respondent :- State Of U.P. And Another Counsel for Petitioner :- Shashi Kant Pandey,Surya Nath Bhatt Counsel for Respondent :- G.A.,N. I. Jafri
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State and perused the record.
The present petition under Article 227 of Constitution of India has been filed for setting aside the impugned order dated 04.12.2018, passed by learned Additional Sessions Judge (S.C./S.T. Act), Court No. 2, Budaun in Criminal Case No. 153 of 2008 (S.S.T. No. 21 of 2013) Shishupal Vs. Sudhir Sharma, whereby application moved under Section 319 Cr.P.C. was rejected.
Learned counsel for petitioner argued that an application under Section 156(3) Cr.P.C. was filed before Court of Magistrate and it was treated as Complaint; complainant and his three witnesses were examined under Sections 200 and 202 Cr.P.c, thereafter, summoning order pass passed against two accused persons leaving behind Smt. Raj Kumari (present respondent no. 2), whereas averment regrading her involvement was there in each of statements recorded as above; subsequently, evidence was got recorded and application under Section 319 Cr.P.C. was moved, which was rejected vide impugned order by Special Judge (S.C./S.T. Act) with this finding that summoning order was challenged before revisional court, where it was affirmed, since then nowhere it was challenged; this case is pending since long and this application has been moved with above averment, which merits its rejection. It was patently erroneous, hence this application.
Sri N.I. Jafri, learned counsel for respondent No. 2 as well as learned A.G.A. opposed this petition with this contention that summoning order was passed by Magistrate after perusal of evidence placed before it and this was challenged before court of revision, where revision was dismissed and order was affirmed, thereafter, trial proceeded, in which this application was moved for summoning of new accused.
From the very perusal of statement, evidence, cross-
examination of PW-1 (present petitioner), it is apparent that he has admitted that there was a Shiv temple, where he along with others used to offer his prayers; present temple was a private temple, where he went for offering prayer in evening of Shivratri and he found that there was a wall newly constructed; he himself had not seen, who constructed this wall and when he asked about this wall to shopkeeper thereat, who are present accused person in above trial, they apprised that the wall has been constructed by them and they will not let him to offer prayer that is why this complaint was filed. Meaning thereby it was a private temple admitted by complainant; it was constructed by someone else i.e. Anil Kumar Sharma and his family members, from whom he is not aware of about any dispute with accused persons, but a suggestive question has been put that this complaint is under connivance of that Anil Kumar Sharma, who happens to be PW-3 in favour of complainant. Meaning thereby above Anil Kumar Shamra of whose temple this complainant is saying is his witness of this occurrence, whereas no documentary evidence is on record or attached with this file to show that this private temple was of Sri Anil Kumar Sharma; the house adjacent to this temple and shop thereat has been said to be of accused persons and it was a private temple as has been said by petitioner himself and this occurrence has specifically been said to be by Sudhish, who has already been summoned and by this application under Section 319 Cr.P.C., without mentioning any allegation of active participation in alleged occurrence against Smt. Raj Kumari, except that there was her involvement in this occurrence, summoning has been prayed. Hence as per law propounded by Apex Court in Hardeep Singh Vs. State of Punjab; 2014 (3) SCC 92 while exercising jurisdiction under Section 319 Cr.P.C. Court is to be very careful while passing any summoning order and this is to be analyzed at that stage, hence in view of above principle and analysis of evidence, there seems to be no illegality or irregularity in the impugned order. The application was of no merit and has rightly been rejected, hence there appears no ground for exercising this writ jurisdiction by this Court.
The writ petition is accordingly dismissed. Order Date :- 28.2.2019 NS