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RAJESH AND OTHERS. versus STATE OF U.P AND ANOTHER

High Court of Judicature at Allahabad

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Rajesh And Others. v. State Of U.P And Another - APPLICATION U/s 482 No. 12155 of 2005 [2006] RD-AH 7362 (5 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Criminal Misc. Application No. 12155/05

Rajesh and others Applicants

Versus

State of U.P. and another Opposite Parties.

AND

Criminal Misc. Application no. 4484/05

Rahul and others Applicants

Versus

State of U.P. Opposite party.

Hon. Vinod Prasad, J

Criminal Misc. Application No. 12155/05 has been filed by Rajesh, Pramod, Bhagwati and Vineet, with the prayer to stay further proceeding in S.T. No. 110 of 2004 under section 302, 307, 504 and 114 IPC pending before the court of Additional District and Sessions Judge, Court No. 6 Aligarh, till complaint case no. 4637 of 2004 Ayodhya Prasad Sharma versus Kapil and others u/s 147, 148, 149, 307, 302, 323, 452, 504 IPC pending before the CJM, Aligarh, is also committed to the court of Additional Sessions Judge, Court No. 6, Aligarh. The further prayer is that the said complaint case be also directed to be decided alongwith the said S.T. No. 110/2004, as the said complaint case arises out of the same incident, in which one person namely, Vinod Kumar Saraswat had lost his life. When Criminal Misc. Application No. 12155/2005 was being heard at the admission stage, learned counsel for the applicants pointed that a cross version of the same incident is pending in this court, being Criminal Misc. Application No. 4484/05 Rahul and others versus State of U.P. and another, which has been stayed by this court, and therefore, the proceedings of the instant sessions trial be also stayed as it being a cross case. The counsel further intimated that in respect of the same incident another criminal misc. application, being criminal misc. application no. 2471/2005, was filed by Kapil, Dinesh, Chetan, Radhey Lal and Rahul, which had been dismissed by Hon. K.K. Misra, J, on 18.3.2005. He also intimated that one criminal revision filed by Ayodhya Prasad, the father of the present applicants Rajesh and Pramod, being criminal revision no. 3985 of 2003, Ayodhya Prasad versus State of U.P. and others is pending and is tied up with Hon. K.N. Sinha, J, but no date is fixed in the aforesaid revision after 7.3.2005. Since all the three cases relate to one and the same incident, therefore, the files of criminal revision no. 3985/03 Ayodhya Prasad versus State of U.P. and others, criminal misc. application no. 2471/05 Kapil and others versus State and another, decided on 18.3.2005 by Hon. K.K.  Misra, J and that of criminal misc. application no. 4484/05 Rahul and others versus State of U.P. has been summoned and is placed before me alongwith the record of the instant Criminal Misc. application. Since the two Criminal Misc. Applications No. 12155/2005 and 4484/2005 arises out of the same incident, therefore, they are being disposed of with this common order as has been agreed between both the parties.  

The factual matrix of both criminal misc. applications has its genesis in an incident, which had taken place on 31.8.2003 at 7.30 A.M. Regarding the said incident a FIR was lodged by Sri Chetan Sharma against four named accused persons Rajesh, Pramod, Bhagwat and Vineet, at P.S. Banna Devi, district Aligarh, on 31.8.2003 itself at 8 A.M. as crime no. 241/03 u/s 307, 114, 504 IPC. (The aforesaid accused persons are the applicants in the present criminal misc. application no. 12155/05 and the informant, Chetan Sharma is the respondent no. 2 herein). As is perceptable from annexure 2 to the criminal misc. application no. 4484/05, the police after investigation filed a charge sheet against only two persons Rajesh and Pramod on 19.11.2003 but did not file the charge against the rest of the other two accused persons namely, Bhagwati and Vineet. After the charge sheet, the case was committed to the court of Sessions and is now pending as S.T. No. 110/04, u/s 302, 307, 504 and 114 of IPC before Additional District and Sessions Judge Court No. 6, Aligarh (stay of this case has been prayed in Criminal Misc. application No. 12155/200).

Ayodhya Prasad Sharma, on the other hand filed an application u/s 156 (3) Cr. P.C. in the court of CJM, Aligarh on 12.9.2003 against 5 named accused persons namely, Radhey Lal, Kapil, who is the brother-in-law of Radhey Lal and Dinesh (who are the applicants in the Criminal Misc. Application No. 4484/2005), Chetan, and Rahul u/s 147, 148, 149, 323, 4452, 504 and 307 IPC. The allegations in the aforesaid application u/s 156 (3) Cr. P.C. were that the applicant Ayodhya Prasad Sharma was an old person and has four sons Dinesh, Vinod, Rajesh and Pramod who are litigating for partition of the parental house in the civil court. Respondent no. 1 Radhey Lal is Sarhu of his son Dinesh and he had friendship with same land grabbers and anti social elements. On 31.8.2003 at 7.15 A.M., when applicant's sons Pramod and Rajesh were milking the buffalos, the named respondents (Radhey Lal, Kapil, Dinesh, Chetan and Rahul )  appeared at the spot and trespassed into the house of Vinod and Rajesh. Radhey Lal and Kapil were armed with revolver and country made pistol while rest of them were armed with lathi and danda. On the instigation of Radhey, rest of the accused Dinesh Vinod, Chetan and Rahul started belabouring Anupam, wife of Rajesh, on which Rajesh and Pramod left the milking and rushed to save Anupam. Rajesh was also belaboured with lathi and danda. Radhey Lal instigated Kapil who shot at Rajesh, which shot evaded Rajesh but hit Vinod. Radhey thereafter fired a shot at Pramod but he escaped un hurt. This incident was witnessed by Ayodhya Prasad (applicant), Kaptan, Raj Kumar, Rajesh, Pramod, Bhimti and Anupam. As a result of the murderous assault Vinod lost his life subsequently and Anupam and Rajesh received blunt weapon injuries. The injuries of Anupam and her husband Rajesh were medically examined in Malkhan Singh Hospital and in district Jail Aligarh. Radhey Lal falsely, got a report lodged against the two sons of the applicant, namely, Rajesh and Pramod, his son-in-law Bhagwati Prasad and grand son (Dhevata) Vineet Kumar. The applicant failed to get his report lodged at P.S. Banna Devi, therefore, he moved applications to the SSP and District Magistrate, Aligarh and at the same time sent a telegram to SSP Aligarh. Since no FIR was registered at the police station, he filed an application u/s 156 (3) Cr. P.C., in the court of CJM, Aligarh on 12.9.2003 registered as Criminal Misc. Application No. 319 of 2003 appending therewith the injury report. Vide his order dated 10.10.2003, learned ACJM, Court No. 9, to whom the said application was transferred, ordered for registration of the case and investigation. Order dated 10.10.03 was challenged by the accused by filing criminal revision no. 653/03.The aforesaid revision was heard and allowed by Additional Sessions Judge/ Fast Track Court No. 4, Aligarh vide his order dated 5.12.2003 who was pleased to set aside the order of registration and investigation of the case passed by the Magistrate. The lower revisional court's order dated 5.12.2003, was challenged by Ayodhya Prasad by filing a criminal Revision in this court being criminal revision no. 3985/03,mentioned above.

Since the effort of getting the FIR lodged did not yield results, Ayodhya Prasad Sharma filed a complaint in the court of CJM Aligarh on 23.11.2004, which was registered as complaint case no. 4537/04. Averments made in the complaint, on the broader aspect of the matter were the same, which were mentioned in the application u/s 156 (3) Cr. P.C. leveling the allegation of murder of Vinod Saraswat on Radhey Lal, Kapil, Dinesh, Chetan and Rahul. Alongwith the complaint the injury reports of Smt. Anupam Saraswat, Rajesh Kumar Saraswat and the post mortem report of the deceased Vinod Kumar Sarswat were annexed. The CJM, Aligarh on 23.11.2005 recorded the statement of the complainant Ayodhya Prasad Sharma u/s 200 Cr. P.C., who supports the version of the complaint in full and anointed the offence of murder of Vinod Kumar Sarswat, on the named accused persons, Radhey Lal, Kapil, Dinesh, Chetan and Rahul. He also anointed the offence of causing injuries to the two injured on these accused. In support of his complaint, the complainant examined injured Pramod Kumar Saraswat P.W. 1, injured Smt. Anupam Saraswat P.W. 2, Rajesh Kumar Saraswat P.W. 3, Dr. N.K. Tandon EMO, M.S. Hospital P.W. 4, Devendra singh Medical Officer, District Jail, Aligarh P.W. 5 and Onkar Singh Record Keeper SSP Office Aligarh as P.W. 6. During the pendency of the complaint, the complainant died in the mid night of 2/3.12.2004. Smt. Anupam Sarswat therefore, filed an application u/s 302 Cr. P.C. for transposition of Sandeep Rai as complainant as desired by complainant in his last wish for the prosecuting his complaint. She also mentioned that Rajesh Sarswat her injured husband was confined in jail, therefore, the complainant deceased Ayodhya Prasad had his last wishes to get Sandeep Rai Advocate substituted as complainant in his complaint. CJM, Aligarh, allowed the said application on 6.12.2004 and permitted Sandeep Rai Advocate to prosecute the complaint as complainant. The CJM, Aligarh summoned the applicants for the offences u/s 147, 148, 149, 307, 302, 323, 452 and 504 IPC for committing the murder of Vinod Kumar Sarswat and causing injury to Smt. Anupam Sarswat and her husband Rajesh Sarswat vide order dated 5.3.2005. It is important to note that the order of substitution of complainant dated 6.12.2004, was not challenged by the accused at any stage. The summoned five accused filed criminal misc. application no. 2471/05 u/s 482 Cr. P.C. in this court through Lal chand Yadav, Advocate on 16.3.2005, with the prayer to set aside the summoning order dated 5.3.2005 passed by CJM Aligarh in that complaint case no. 4637/04 Ayodhya Prasad Sharma versus Kapil and others. They also prayed for stay of further proceedings of the aforesaid complaint case. The said application was dismissed by Hon. K. K. Misra, J, on 16.3.2005 with the following order:-

" Heard learned counsel for the applicants and learned AGA.

No ground for interference is made out. The 482 Cr. P.C. application is dismissed. However, it is provided that in case the applicants appear or are produced before the courts concerned and apply for bail, in case no. 4637 of 2004 under section 147, 148, 149, 307, 302, 323, 452, 504 IPC, P.S. Bannadevi, district Aligarh, their bail prayer shall be dealt with a per the seven Judges' decision of this court dated 15.10.2004 passed in Criminal Misc. Application no. 2154 of 1995 (Smt. Amarawati and another versus State of U.P.) reported in 2004 (57)ALR 390.

In the aforesaid criminal misc. application the accused never disclosed the fact, regarding the pendency of the criminal revision no. 3985/03 Ayodhya Prasad versus State and others in this court in the affidavit filed by them.

Since the aforesaid order passed by Hon'ble K.K. Misra, J was not challenged by the accused in the apex court it has attained finality and now this court cannot go behind the aforesaid order. The accused however, in the teeth of the aforesaid order filed another criminal misc. application, u/s 482 Cr. P. C., being criminal misc. application no. 4484/05 with the prayer that the entire proceedings of the aforesaid complaint case no. 4637/04 Ayodhya Prasad versus Kapil and other pending in the Court of CJM, Aligarh for the aforesaid offences be quashed. They also prayed for stay of further proceedings in the aforesaid complaint case. This second Criminal Misc. Application No. 4484/05 was filed on 27.4.2005 through Anil Srivastava and Devendra Dhama Advocates and Sri Viresh Mishra learned Senior Advocate appeared as counsel on behalf of the applicants-accused in this criminal misc. application. Hon. Umeshwar Pandey , J. at the admission stage of that petition, on the pointing out of Sri Satish Trivedi learned senior counsel assisted by Sri Sri Ramanuj Tripathi Advocate on behalf of the complainant respondent, directed the counsel for both the sides to file a detailed affidavit giving entire data and details of commission of fraud in the matter, as it was pointed out to his lordship that the applicants in that criminal misc. application 4484/05 had already filed an earlier application with the same relief and between the same parties being criminal misc. application no. 2471/05 which stood dismissed on 18.3.2005 with the order quoted above by Hon. K.K. Misra, J. Hon'ble Judge was further pleased to direct an enquiry in to the matter and appointed Sri Shashank Shekhar, OSD, as an inquiry officer. The Inquiry Report has already been submitted by Sri Shashank Shekhar, which is appended along with the record of criminal misc. application no. 4484/05, which is being disposed off today by this common order.

Under these circumstances the criminal misc. application no. 12155/05 has been filed by the charge sheeted accused as well as Bhagwati and Vineet, who were also being tried alongwith the charge sheeted accused in above mentioned sessions trial for the murder of Vinod Saraswat with the prayer mentioned above for stay of S.T. No. 110 of 2004 pending before Additional District and Sessions Judge, court no. 6, Aligarh.

I have heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Ramanuj Tripathi, on behalf of the applicant in this criminal misc. application no. 12155/05, as well as Sri Viresh Mishra, learned Senior counsel, assisted by Sri Devendra Dhama and Anil Kumar Srivastava Advocate on behalf of the respondent no. 2 Chetan Sharma and vice-versa in criminal application no. 4484/05 Rahul and others versus State of U.P. and another.

I take up criminal misc. application no. 4484/05 first, as the said application is an earlier petition.

The aforesaid application has been filed by five named accused persons in the complaint case filed by Late Ayodhya Prasad Sharma substituted by Sandeep Rai Advocate. They are Radhdey Lal, Kapil, Dinesh, Chetan and Rahul. The record of the criminal misc. application no. 2471/05 decided on 18.3.2005, by Hon. K.K. Misra, J reveals  that criminal misc. application no. 4484/05 had been filed by those  very accused, who had filed criminal misc. application no. 2471/05. Earlier they had prayed for quashing of their summoning order dated 5.3.2005 in the complaint case no. 4637/04 Ayodhya Prasad Sharma versus Kapil and others u/s 147, 148, 149, 307, 302, 323, 452 and 504 IPC, P.S. Banna Devi, district Aligarh, pending before the CJM, Aligarh, and the second time through criminal misc. application 4484/05, they have prayed for quashing of the same complaint case in which that summoning order was passed. Thus the prayer, which had been made in the second criminal misc. application no. 4484/05 was for the same relief, which was subject matter of criminal misc. application no. 2471/05 filed earlier by them. Consequently, criminal misc. application no. 4484/05 was nothing but a second application for the same relief which was already dismissed by this court by order dated 18.3.2005, passed by Hon. K.K. Misra, J. Since order passed by Hon. K.K. Misra, J had attained finality; the same could not have been reviewed or altered by this court. Consequently, criminal misc. application 4484/05 was nothing but a malafide exercise adopted by the accused applicants.

Learned Senior Counsel Sri Viresh Mishra contended that in the inquiry report, the Inquiry Officer has not indicated that the accused in complaint case had filed the criminal misc. application No. 2471 of 2005, therefore, the accused cannot be saddled without any responsibility. This contention of the learned counsel cannot be accepted. The report of Inquiry Officer Sri Shashank Shekhar OSD, (Inquiry) dated 11.7.2005, clearly indicates that he has recorded a finding that the accused had come to know about the order passed in criminal misc. application no. 2471/05, on 19.4.2005 itself  "Yet they did not choose to get this fact mention in the application u/s 482 Cr. P.C. filed by them, i.e. criminal misc. application no. 4484/05 for the reasons best known to them." It is pointed out that no attempt had been made to get the order dated 18.3.2005 recalled by the accused. Thus in net result Criminal Misc. Application No. 4484/05 is nothing but a second attempt by the accused with ulterior motives. More over on facts also criminal misc. application 4484/05, relates to the death of the same person Vinod Kumar Sarswat and in fact is a cross version of the same incident, which is subject matter of S.T. No. 110/2004 aforesaid. Being a cross / counter version it has to be tested by leading evidence in the trial and hence the proceedings cannot be quashed.

It is pointed out that a cross or counter case means a second version different from the first by another party of the same incident whether the accused are the same or not.  The incident is admitted to the rival sides and there are two versions of the same incident. Cross case or counter case admits happening of the incident and consequently it cannot be said that no incident had taken place. Once the happening of the incident is not disputed the two rival contentions have to be tested for its correctness through trial. It is preposterous even to cogitate, that the prosecution is malafide or purposive in such a case. Once happening of the incident is admitted the correctness of the version can be decided only after giving opportunity to both the sides to lead evidence and by examination and cross -examination of witnesses. Before that is done, no finding can be recorded as to which version is correct or not. The finding of correctness of one of the version can be judgmented only after both sides are allowed to lead evidence. Any finding recorded in that respect pretrial will not only be illegal but will also be against the very fundamental principle of criminal law. Any such pretrial finding will definitely prejudice adversely one or the other side and consequently the same cannot and should not be recorded in exercise of power u/s 482 Cr.P.C. There is another aspect, which requires consideration. Once there are two versions of the same incident, both the versions have to be tested on the anvit of reliability before any of them is accepted and that can be done only when the trial of both versions are allowed to proceed. It is pointed out that in case of State of Hariyana versus Chaudhary Bhajan Lal, 1992 SCC (Crl.) 426 while laying down various categories for quashing of the prosecution Supreme Court has not laid down that a cross case or counter case can be quashed. A cross case or a counter case does not fall any of the categories mentioned in the aforesaid judgment. Happening of the incident once admitted the case must be allowed to proceed for recording a correct finding based on evidence for proving the guilt or innocence of the accused of one or the other case. In this view of the matter once the version in the instant complaint case is supported by injured witnesses along with doctors medical reports and autopsy report, it cannot be quashed and has to be tested at the trial by examining witnesses." (emphases mine).

It is then contended by the learned Senior Counsel Sri Viresh Mishra, that CJM had no jurisdiction to take cognizance on the complaint since, revision filed by the complainant, against the order passed by Sessions Judge, rejecting application u/s 156 (3) Cr. P. C., was pending in this court and hence the complainant was contesting his case in this court. He contended that the complainant had no right to file the complaint nor the CJM was justified in entertaining the aforesaid complaint. The said contention of the learned senior counsel, in my opinion, is not based on any principle of law and has been argued by him only to be rejected. An order u/s 156 (3) Cr. P.C. is passed at a pre cognizance stage. Section 156 (3) Cr. P. C. falls under Chapter XII of the Code of Criminal Procedure herein after referred to as Code, under the appellation "INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE" Section 156 (3) Cr. P.C. relates to the power of officer in-charge of police station to investigate cognizable offence without an order of Magistrate who had got the jurisdiction over the local area within the limits of such police station. Under sub section 3 of section 156, any Magistrate who had got such jurisdiction to take cognizance of offence may order "such  an investigation as mentioned above." Thus order passed u/s 156 (3) Cr. P.C. is only for the purpose of making an order for investigation to the police. The Magistrate at that stage does not take cognizance of the offence. He does not apply his mind for the purpose of summoning of the accused. The cognizance is taken by the Magistrate u/s 190 Cr. P.C., which section has been bracketed under Chapter XIV of the Code with the title "CONDITION REQUISITE FOR INITIATION OF PROCEEDINGS." The two Chapters deal with different stages and under different spheres all together. Under the forum of section 156 of the Code the Magistrate only engineers an investigation where as in the later section he takes cognizance of the offence committed by the named or unnamed accused persons. The purpose of an order u/s 156 (3) of the Code is to direct the police to register the FIR and conduct the investigation. Where as, u/s 190 (1)(a) Cr. P.C. the Magistrate takes cognizance of the offence and directs the complainant to produce his evidence before him against the accused for offences complained off. Thus the two areas of operation are entirely different with nothing in common. I am fortified in my view by the judgment by Supreme Court reported in AIR 1961 S.C. 986Gopal Das Sindhi and others versus State of Asam and another, where in it has been held:-

"When the complaint was received by mr. Thomas on august 3, 1957, his order which we have already quoted clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156 (3) states " Magistrate empowered under section 190 may order such investigation as above mentioned." Mr. Thomas was certainly a Magistrate empowered to take cognizance under section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He,however, decided not to take cognizance but to send the complaint to the police for investigation, as section 147, 342 and 448 were cognizable offences. It was however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complainant filed before him, because section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complainant filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of section 190 to rean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ''may' in section 190 to mean ''must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under section 156 (3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate the cases involving cognizable offences is with the police. On the other hand , there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so, then he would have to proceed in the manner provided by Chapter XVI of the Code. Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by "taking cognizance". It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal V. Abani Kumar Banerjee'

What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that before  it can be said that any Magistrate has taken cognizance of any offence under section 190 (1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-Proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applied his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, eg. Ordering investigation under section 156 (3), for issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

were approved by this Court in R.R. Chari V. State of Uttar Pradesh. It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applied his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind e.g. ordering investigation under section 156 (3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr, Justice Das Gupta above referred to were also approved by this Court of Narayandas Bhagwandas Madhavdas vs. State of West Bengal. It  will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957 with a view to taking cognizance of an offence. The Additional District Magistrate passed  on the complaint to Mr. Thomas deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mid to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under section 156 (3) of the Code. The action of Mr. Thomas comes within the observation of Mr. Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance."(emphasis supplied).

The above passage cited above has been quoted with approval in one of the latest judgment of Supreme Court reported in 2006 ACC 530 Mohd. Yunus versus Smt. Ashfaq Jahan and another.

In this view of the matter the criminal revision filed by Ayodhya Prasad Sharma, since deceased, was in no way a bar, to the filing of a complaint by Ayodhya Prasad for the same offence. His first relief was in respect of direction to the police, where as the second was a request to the court to take cognizance of the offences, summon the accused and punish them for the crime committed by them. Thus the contention of the learned senior counsel Sri Viresh Mishra is bereft of any sound reasoning and legal principle and is rejected as such.

Sri Viresh Mishra, learned senior counsel, half heartedly, also contended that the order of substitution passed by the Magistrate dated 6.12.2004 was wholly inappropriate, but the said contention is also devoid of merit and is rejected. The Magistrate had given cogent and sound reason for permitting Sandeep Rai to be substituted in the place of deceased Ayodhya Prasad Sharma and more over, that order once merged in to the order passed by this court in criminal application no. 2471 of 2005 is now not open to challenge by the applicants.

Lastly, Sri Viresh Misra learned senior counsel submitted that the proceedings are malafide and therefore it should be quashed.

As discussed above, the said contention of Sri Misra is devoid of substance and legal principles. Thus Criminal Misc. Application No. 4484 of 2005 filed by Rahul and others versus State of U.P. and another   is merit less and is dismissed and the stay order granted in this application is hereby vacated.

Now turning towards the criminal misc. application no.12155/05, filed by Rajesh and others, I am not inclined to stay the trial. Since it is a cross version, Additional Sessions Judge Court No. 6 Aligarh who is ceased of S.T. No. 110/04 u/s 302, 307, 504 114 IPC is directed to conclude the trial but will not pronounce the judgment in the aforesaid trial unless and until he has also concluded the cross case referred to above, being complaint case No. 4637 of 2004 Ayodhya Prasad/ Sandip Rai versus Kapil and others pending before CJM Aligarh by him. He is directed to pronounce the judgment of the both the cases simultaneously on the basis of evidence led in each of the individual case separately. CJM, Aligarh is directed to commit the aforesaid complaint case pending before him to the court of Additional Sessions Judge, Court No. 6, Aligarh within a period of two week from today without giving further time to the accused and after noticing them for committal proceeding. Additional Sessions Judge court no. 6 Aligarh is further directed to take up the said complaint case on an urgent basis and will try and conclude the same within a period of two months keeping in view section 309 Cr. P.C.

It had been concludingly, contended by Sri Viresh Mishra learned senior counsel that some direction regarding the bail of accused be given in the aforesaid complaint case if the same is not quashed.

In view of the submission of the learned counsel and facts of the case it is directed that if the applicants Kapil, Dinesh, Chetan, Vinod and Radhey Lal in complaint case no. 4637 of 2004 u/s 147, 148, 149 307, 302, 323, 452 and 504 IPC, pending in the court of CJM Aligarh appear or surrender before the trial court and makes an application for bail, their bail application shall be considered and disposed of as expeditiously as possible but without unnecessary delay.  

Since there is no finding recorded by the Inquiry Officer as to who has tempered with the judicial process and no body has been pin pointed, I do not consider it appropriate to order for any further prosecution into the matter of inquiry.

With the aforesaid observation criminal application no. 4484/05 is dismissed and stay order granted in the application stands vacated.

Criminal misc. application no. 12155/05 is partly allowed in terms directed herein before in this order.

DATE:05.4.2006

SKS/12155/05/4484/05/


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