Allahabad High Court
Gaurav Tyagi vs State Of U.P. And 5 Others on 7 August, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:157649
Court No. - 87
Case :- APPLICATION U/S 482 No. - 17943 of 2023
Applicant :- Gaurav Tyagi
Opposite Party :- State Of U.P. And 5 Others
Counsel for Applicant :- Anup Kumar,Jeetendra Singh
Counsel for Opposite Party :- G.A.,Alakshyendra Goel
Hon'ble Neeraj Tiwari,J.
1. Heard Sri Ravi Shankar Prasad, learned Senior Counsel, assisted by Sri Anup Kumar, learned counsel for the applicant, learned A.G.A.. for the State and Sri Alakshyendra Goel, learned counsel for the opposite party No. 2.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 01.03.2023 to the extent of charged framed under Section 308 of I.P.C. against the Respondent No. 2(Kuldeep) passed by learned Sessions Judge, Hapur in disposal of Application No. 8 B in Sessions Trial No. 76 of 2023(State Versus Kuldeep and Others) in Case Crime No. 442 of 2021 and further to direct the learned Sessions Judge, Hapur to frame charge under Section 307 of I.P.C. with other Sections as mentioned in the charge sheet.
3. Learned Senior Counsel submitted that FIR dated 19.09.2021 has been lodged, upon which charge sheet has been submitted under Sections 147, 149, 323, 506, 148, 324, 308, 504 I.P.C. He next submitted that applicant has filed application under Section 216 Cr.P.C. numbered as 8B for alteration of charges mentioned in the charge sheet, where it is clearly mentioned that incident took place at the residence of applicant and further as per the supplementary medical report dated 23.09.2021, injury is on the frontal side and endangering to life. He next submitted that objection numbered as 10B has also been filed. He next submitted that learned Judge while considering the application 8B, added Section 452, but so far as Section 307 is concerned, the same has not been added only on the ground that fire-arm has not been used. He next submitted that for adding Section 307, there is no requirement of fire-arm and it can be added on the basis of injury caused by any weapon. He also placed reliance upon the judgment of the Apex Court in Criminal Appeal No. 1190 of 2009: State of Madhya Pradesh Vs. Harjeet Singh and another, decided on 19.02.2019, where Apex Court has held that if a person causes hurt with intention with intention or knowledge that he may cause death, it would attract Section 307. He firmly submitted that while passing order dated 01.03.2023, learned Judge has not considered the medical report but relied upon the fact that fire-arm has not been used. He next submitted that this cannot be a ground to reject application No. 8B.
4. Learned A.G.A. as well as learned counsel for the opposite party No. 2 opposed the submission made by learned Senior Counsel, but could not dispute the fact that except absence of fire-arm, no other reason has been recorded in order dated 01.03.2023 for not adding Section 307.
5. I have considered submissions raised by learned counsel for the parties and perused the record.
6. From the perusal of impugned order, it is apparently clear that application No. 8B has been rejected only on the ground that fire-arm has not been used, which cannot be a ground to reject the application. While deciding the application, it is required on the part of the learned Sessions Judge to consider the medical report and other material available on record.
7. Therefore, in view of facts and circumstances of the case as well as judgment of Apex Court in State of Madhya Pradesh(Supa), order dated 01.03.2023 cannot be sustained, hence, the same is hereby quashed and application is allowed..
8. Matter is remanded back to trial Court to pass fresh order on application No. 8B with regard to addition of Section 307 considering the material available on record, which includes medical report, other material and legal pronouncements occupying the field within four weeks from the date of production of certified copy of this order.
Order Date :- 7.8.2023
ADY
