Allahabad High Court
Surendra vs State Of U.P. And Another on 29 March, 2019
Bench: Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- APPLICATION U/S 482 No. - 11132 of 2019
Applicant :- Surendra
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Randhir Singh
Counsel for Opposite Party :- G.A.
Hon'ble Bachchoo Lal,J.
Heard learned counsel for the applicant, 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 29.11.2018 passed in Case No. 2232 of 2018 (Shivanshu Kumar Vs. Surendra), under section 307 IPC, P.S. Nauchandi, District Meerut pending in the court of A.C.J.M. Court No. 1, Meerut.
The contention of learned counsel for the applicant is that the applicant is innocent and has falsely been implicated in the present case. In this case the I.O. has submitted final report. Thereafter, the informant moved a protest petition and on the protest petition the applicant has been summoned to face the trial under section 307 IPC. It has further been submitted that the injury report of injured is of private hospital. There is no independent witness of the alleged incident. The learned Magistrate has taken cognizance on the basis of statement of informant/injured recorded under section 161 Cr.P.C. Shivanshu Kumar who is said to be the eye witness of the alleged incident has filed affidavit mentioning therein that no such incident has taken place. The impugned order of learned Magistrate is not in accordance with law.
On the other hand learned A.G.A. argued that applicant is named in the FIR. The informant/injured Shivanshu Kumar in his FIR as well as in his statement recorded under section 161 Cr.P.C. has stated that applicant fired upon him due to which he sustained gun shot injury. At the time of medical examination gun shot injury has been found on the person of injured. The learned Magistrate after finding a prima facie case has rejected the final report and summoned the applicant to face the trial under section 307 IPC. There is no illegality or irregularity in the impugned summoning order.
A perusal of the record shows that the applicant is named in the FIR. The informant/injured has also disclosed the name of applicant and has stated that applicant fired upon him due to which he sustained gun shot injury. At the time of medical examination fire arm injury has been found on the person of injured.
Considering the facts and circumstances of the case, I do not find any ground to set-aside the impugned order dated 29.11.2018 passed by learned Additional Chief Judicial Magistrate in the aforementioned case, therefore, the prayer for setting aside the same is hereby refused.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 29.3.2019
Masarrat
