Allahabad High Court
Bhoop Singh And 3 Others vs State Of U.P. And Another on 9 October, 2023
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:194119
Court No. - 89
Case :- APPLICATION U/S 482 No. - 34972 of 2023
Applicant :- Bhoop Singh And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ramesh Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
1. Heard learned counsel for the applicants and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed by the applicants to quash the order dated 11.08.2023 passed by the A.C.J.M. Nagina, District- Bijnor in Case No. 1018 of 2023 (State vs. Bhoop Singh and others), arising out of Case Crime No. 35 of 2023, under Sections 323, 324, 504 IPC, Police Station- Nagina, District- Bijnor.
3. Learned counsel for the applicants submits that order dated 11.08.2023 passed by Additional Chief Judicial Magistrate, Nagina, District- Bijnor is bad in the eye of law as learned Magistrate has considered the injury report of injured, Ajay Kumar and found that offence is triable by Session Judge and by order dated 11.08.2023 committed the case for session trial. He next submits that in the first information report and in the N.C.R., there is no reference that injured, Ajay Kumar suffered injuries and consideration of the injury report by the trial court on the application of opposite party no. 2 is bad in the eye of law and liable to be quashed.
4. Learned counsel for the applicants has placed reliance upon the judgement passed by a co-ordinate Bench of this Court in Application U/S 482 No. 2556 of 2023 (Nanhey Bhaiya @ Nanhan Singh And 2 Others), wherein this Court has followed the view taken by Hon'ble Apex Court in the case of P. KartikaLakshmi vs. Sri Ganesh And Another reported in (2017) 3 SCC 347 that 'when the application preferred by the appellant itself before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 CrPC. Therefore, there was no question of the said order being revisable under Section 397 CrPC. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 CrPC. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court'. Paragraph no. 7 of P.KartikaLakshmi (Supra) is quoted as under:-
"7. We were taken through Sections 221 and 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 CrPC is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC. If such a course to be adopted by the parties is allowed, then it will be well-nigh impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardised. "
5. Learned counsel for the applicants further submits that in view of the judgment of Hon'ble Apex Court as well as of this Court, the application moved by the opposite party no. 2 is not maintainable and committing the case for session trial for framing of charge is illegal and abuse of process of law.
6. Per contra, learned AGA opposes the submissions made by counsel for the applicants.
7. Considered the submissions made by counsel for the parties and perused the entire record.
8. The proceedings challenged herein by the counsel for the applicants is that learned Judicial Magistrate has committed the case for session trial on the medical report of the injured, Ajay Kumar as, prima facie, offence under Section 307 IPC is made out. On perusal of record, I find that complainant filed an application under Section 155(2) Cr.P.C. dated 31.01.2023, which is annexed as Annexure- 2 to this application, in which it has been alleged that injured, Ajay Kumar received injury and the Investigating Officer has not considered the medical examination report and has not brought the injury report of Ajay Kumar with record, therefore, Ajay Kumar moved an application under Section 323 Cr.P.C. with the submission that on perusal of medical examination report and other evidences, offence under Section 307 IPC is made out. Reliance placed over judgment by counsel for the applicants in which dispute relates to proceedings under Section 216 Cr.P.C. by which framing of charge to be altered or edited but the case herein is on entire different footing. Hence, reliance placed by counsel for the applicant, is not applicable in the present case.
9. In view of the above, prima facie, case is made out against the applicants. No interference is warranted, at this stage.
10. The present 482 application is dismissed with the aforesaid observation.
11. However, if the applicants surrender before the concerned court within three weeks from today and apply for bail, their bail applications shall be decided expeditiously by the court concerned, in accordance with law laid down by the Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another, reported in 2021 SCC OnLine SC 922.
Order Date :- 9.10.2023
Aditya
