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Brahma Kumari Santosh v. State Of U.P. & Others - CRIMINAL APPEAL No. 964 of 2007 [2007] RD-AH 12586 (23 July 2007)


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Court No. 49

Criminal Appeal No. 964 of 2007

Brahma Kumar Santosh Vs. State of U.P. and another

Hon'ble M. K. Mittal, J.

This appeal has been filed against the order dated 7.12.2006 passed by Addl. Sessions Judge, F.T.C. No. 3 Shahjahanpur under Section 340 Cr.P.C. whereby he dismissed the application filed by the appellant for initiating proceedings against the complainant and witnesses including the Investigating Officer of the case.

I have heard Sri V.V. Tripathi, learned counsel for the appellant, learned A.G.A. and perused the material on record.

Brief facts of the case are that the first information report was lodged against the present appellant by Doctor Kamal Deep Singh under Sections 328, 302 IPC, P.S. Sadar, District Shahjahanpur. Appellant faced trial and was acquitted by judgement and order dated 9.9.2005 and thereafter the appellant moved an application under Section 340 Cr.P.C. Learned Trial Court invited objection and after considering the same came to the conclusion that the State appeal no. 5770 of 2005  has already been filed in this Court and therefore application under Section 340 Cr.P.C. was not maintainable and was liable to be rejected and he consequently rejected the same. Feeling aggrieved this appeal has been filed.

Learned counsel for the appellant has contended that false report was lodged against the appellant and the complainant and the witnesses also made false statements in the Court and that sessions trial resulted in acquittal. But appeal has been filed by the state against that judgement and therefore it cannot be said that the acquittal has become final or that the allegations as made by the complainant in the first information report were false and fabricated.

In the circumstances, I am of the opinion that the application filed under Section 340 Cr.P.C. was premature and was not maintainable and the present  appeal in the circumstances is also not maintainable and is liable to be dismissed. However, it shall be open to the appellant to take necessary legal action under Section 340 Cr.P.C. in the State appeal or after its decision, as the case may be.

With this observation appeal is hereby dismissed.

Dated: 23.7.2007



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