Heard learned counsel for the parties and perused the record.
This Criminal Writ Petition has been filed for quashing the impugned order dated 22.06.2009 passed by the learned Additional Sessions Judge/ Special Judge (SC/ST) Act, Bulandshahar in Criminal Revision No.202 of 2009, Somkesh Vs. State of U.P. and others as well as order dated 03.03.2009 passed by the learned Additional Chief Judicial Magistrate, Court No.1, Bulandshahar, in Case No.385 of 2007.
The submission of the learned counsel for the petitioner is that the F.I.R. was registered at Case Crime No.422 of 2007, under sections 376 IPC and 3(2)(5) S.C./S.T. Act, P.S.Khurja Nagar, District-Bulandshahar. The name of the accused mentioned in FIR was Hirdesh Gupta, S/O Hoti Lal. Name of the present petitioner was included during the course of investigation. The trial of the named accused Hirdesh Gupta was separated and proceeded as S.T.No.1210 of 2005. The certified copy of the judgement is annexed as Annexure No.5 to the writ petition, dated 5.10.2006, whereby the accused has been acquitted. The submission of the learned counsel for the petitioner is that the main accused has already been acquitted and now framing of charge to continue the trial against the petitioner is nothing but abuse of 2 the process of the court.
Learned counsel for the petitioner submits that since the same evidence and the same allegation is also in the instant trial, continuance of the trial for a second time is liable to be stopped. This fact was brought to the notice of the concerned Sessions Judge at the time of discharge. In the circumstances, rejection of the discharge application is liable to be interfered. Reliance has been placed of two decisions in the case of Maya Devi and others Vs. State of U.P., reported in 2006 (56) ACC, page 26 (Hindi) and in the case of Rajendra Kumar Vs. State of U.P. and another, reported in 2006 (56), page 116.
After hearing learned counsels for respective parties and going through record, it is clear that petitioner is not named in the first information report, no overt role is attributed to him whereas accused who was alleged to have eloped with victim and married her, has been given a clear verdict of acquittal. According to prosecution, boy and girl had stayed in the house of present petitioner for a single day, therefore, petitioner has also been arrayed as an accused.
Taking into consideration principles of stare decisis laid down in various decisions, formality of going through a de novo trial in respect of a single accused is only wastage of time, energy and money since main accused has been acquitted. This fact was liable to be taken into consideration by the court below and discharge application was also liable to be allowed.
For the reasons discussed above, impugned orders dated 22.6.2009 passed by Additional Sessions Judge/Special Judge (SC/ST) Act, Bulandshahar and 3.3.2009 passed by Additional Chief Judicial Magistrate, 3 court no.1, Bulandshahar are quashed. Proceedings pending before the Magistrate is set at naught. Petitioner will not have to face the trial. He is entitled to be given a clear acquittal as that of accused Hirdesh Gupta son of Hoti Lal. The instant petition is allowed.
Dated : 27.01.2010 pkc