Allahabad High Court
Jakaria And Others vs State Of U.P. And Another on 18 September, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:59871
Court No. - 28
Case :- APPLICATION U/S 482 No. - 8123 of 2018
Applicant :- Jakaria And Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ramakar Shukla,Anil Kumar Tiwari,Gyanendra Pathak
Counsel for Opposite Party :- Govt. Advocate,Anjani Kumar Dvivedi,Ravindra Shukla
Hon'ble Shree Prakash Singh,J.
1. Heard Sri Anil Kumar Tiwari, learned counsel for the applicants, Sri Ravindra Shukla, learned counsel for opposite party no.2 and Sri Girijesh Kumar Dwivedi, learned A.G.A. for the State and perused the material available on record.
2. The instant application has been filed for quashing the impugned order dated 02.01.2018 passed by learned Judicial Magistrate, Musafirkhana, District- Sultanpur (now Amethi) arising out of Case Crime No.603 of 2016, under Sections 323, 504, 427, 452, 506 & 307 I.P.C., arising out of Criminal Case No.622 of 2016 (State vs. Junaid @ Papoo and Others) as well as the judgment and order dated 25.09.2018 passed by learned Additional Sessions Judge/ FTC-I, Sultanpur in Criminal Revision No.6 of 2018 (Jakaria vs. State of U.P. and Another) and further criminal proceedings in pursuance thereof.
3. Factual matrix of the case is that on 08.09.2016, opposite party no.2 lodged an F.I.R. against the applicants which was registered as Case Crime No.603 of 2016, under Sections 323, 504, 427, 452, 506 & 307 I.P.C. at Police Station- Musafirkhana, District- Amethi, wherein the applicants were named. After investigation, police submitted the charge sheet under Sections 323, 504, 427, 452, 506 & 324 of I.P.C.
4. Further, the Trial Court took cognizance on 02.01.2018 and summoned the applicants under Section 307 of I.P.C. also. After the order dated 02.01.2018, the same was assailed before the Revisional Court, in Criminal Revision No.6 of 2018' which was also dismissed on 25.09.2018 and the order passed by the Trial Court has been upheld.
5. Contention of the learned counsel for the applicants is that initially the F.I.R. was lodged under Sections 323, 504, 427, 452, 506 & 307 I.P.C and thereafter the charge sheet was filed including Section 324 while excluding Section 307. He next added that learned Trial Court while issuing the summons has added Section 307 of I.P.C. and also summoned the applicants under Section 307 I.P.C. along with other offences.
6. Learned counsel for the applicants has drawn attention towards the order impugned dated 02.01.2018 and submitted that admittedly summons can be issued for the charges mentioned in the charge sheet or for the offences other than charge sheet but, the reason must be recorded and as far as the impugned order dated 02.01.2018 is concerned, the reason for altering the charges is missing.
7. Adding his argument, learned counsel for the applicants submits that from perusal of the injury report of the injured persons, it transpires that the injuries are not on the vital part of the body of the injured as there are one injury of firearm on the thigh of the injured, namely, Sajjad and there are other two injuries on the body of another injured person, which are also not on the vital part.. He further added that so far as the ingredients of Section 307 I.P.C. is concerned, that do not attract in the matter and without considering the aforesaid, the Trial Court has summoned the applicants under Section 307 I.P.C. also.
8. Learned counsel for the applicants further added that the order dated 02.01.2018 was challenged before the Revisional Court and the Revisional Court dismissed the Revision and upheld the order dated 02.01.2018 passed by the Trial Court.
9. Concluding his argument, he submits that since the order dated 02.01.2018 and further order passed in the Revision dated 25.09.2023 are erroneous and therefore those are not sustainable in the eyes of law, hence the same may be set aside.
10. On the other hand, learned counsel for opposite party no.2 has vehemently opposed the contentions aforesaid and submitted that it is undisputed that the Trial Court can summon the accused under Section(s) other than the Sections of the charge sheet. He next added that the Trial Court has also mentioned the reasons in Para No.3 of the order dated 02.01.2018 and submitted that from perusal of the statement of the injured dated 19.09.2016, it is evident that the applicants opened fire with country made pistol and the injured received injuries which is supported by the injury report itself. He added that there is another injured who also received injuries and therefore there is no erroneousness in the order dated 02.01.2018 passed by the Trial Court and the order dated 25.09.2023 passed by the Revisional Court.
11. Learned A.G.A. for the State has also supported the version of learned counsel for opposite party no.2 and submitted that there is no infirmity in the order dated 02.01.2018 and the Trial Court is empowered to issue summons to an accused other than for offences in the charge sheet and thus no interference is warranted.
12. Having heard learned counsel for parties and after perusal of material placed on record, it transpires that F.I.R. was lodged by the complainant under Sections 323, 504, 427, 452, 506 & 307 I.P.C. and when the matter was investigated, charge sheet was filed under Sections 323, 504, 427, 452, 506 & 324 I.P.C., excluding Section 307 I.P.C.
13. When this Court examined the order dated 02.01.2018 passed by the learned Trial Court, it transpires that the present applicants have been summoned under Section 307 of I.P.C. along with Sections 323, 504, 423, 452 & 506 I.P.C., though the charge sheet was filed under Section 324 of I.P.C. It is a settled proposition of law that the Magistrate can issue summons for offences other than mentioned in the charge sheet but the reasons must be recorded but so far as the order dated 02.01.2018 is concerned, the reasons have not been recorded and the only fact has been mentioned that there is firearm injury as per the medical report but the distinction has not been carved out, whether those injuries are on the vital part of the body of injured or not.
14. So far as the injury report of the injured is concerned, prima facie it reveals that the injuries are on the non vital part of the body of the injured as those are on the thigh of the injured, namely, Sajjad and another injuries on the body of another injured which are also not on the vital part. It is not understandable as to how the Magistrate has issued summons to the applicants under Section 307 I.P.C. despite the fact the injuries are not on the vital part of the body of the injured.
15. In view of the aforesaid submissions and discussions, the impugned order dated 02.01.2018 passed by the Trial Court as well as the order dated 25.09.2023 passed by the Revisional Court, are hereby set aside.
16. The matter is remitted back to the Trial Court concerned for passing fresh order within a period of 45 days from the date of this order.
17. Office is directed to communicate this order to the Trial Court concerned.
18. The instant applicant is allowed accordingly.
Order Date :- 18.9.2023/Manoj K.
