Amar Nath @ Pintoo Baba vs State of U.P. and Another

Ravindra Singh, J.—Heard Sri Indra Mani Tripathi, learned counsel for the applicant and the learned A.G.A. This application has been filed by the applicant Amar Nath alias Pintoo Baba with a prayer to quash the order dated 10.2.2010, passed by the learned C.J.M., Siddharth Nagar in Criminal Case No. 1114 of 2002 arising out of police report submitted in Case Crime No. 35 of 2002 u/s 120B read with Section 394/ 302, I.P.C. P.S. Basi district Siddharth Nagar and to quash the proceedings of the above mentioned case pending in the court of learned C.J.M., Siddharth Nagar.

The fact in brief of this case are that the F.I.R. of this case has been lodged by Shiv Kumar Soni u/s 394/ 302, I.P.C. against 3 unknown miscreants on 10.1.2002 at 1.25 p.m. in respect of the incident allegedly occurred on 10.1.2002 at about 9.30 p.m. alleging therein that the deceased Manoj Kumar was having a shop of Jewellery after closing the shop on 10.1.2009, at about 9.30 p.m. he alongwith his son Durgesh left the shop, the deceased was having three bags, when they reached at a short distance from the shop two miscreants came from the back side and caught the neck of the deceased and they started beating the son of the deceased namely Durgesh who called one Ashok to rescue his father. The miscreant caused the gun shot injury on the bag which was on the shoulder of the deceased and ran from the place of occurrence, they got lift from the third miscreants who was also standing near the motorcycle and with that motorcycle all the three miscreants riding on the motorcycle fled away. The deceased in an injured condition alongwith two bags having the Jewellery was taken to his house and he was taken to the Basi Hospital where he succumbed to their injuries. The inquest report was prepared on 10.1.2002 from 11.34 p.m. to 7.30 a.m. on 11.1.2002 the post-mortem examination was conducted on 11.1.2002. According to the postmortem examination report the cause of death was due to haemorrhage and shock as a result of ante-mortem injuries. The deceased sustained injuries on front left side of chest, after spot inspection the site plan was prepared on 11.1.2002. During investigation the name of the applicant and the co-accused Kundan Maurya came to light and the charge-sheet dated 29.4.2002 has been submitted against the applicant u/s 120B read with Section 394/ 302, I.P.C. on which the learned C.J.M., Siddharth Nagar has taken cognizance on 14.5.2002, the applicant was arrested on 26.2.2002, thereafter the applicant was released on bail by the High Court, in pursuance of the order he has been released from jail on 1.6.2002 but on account of his nonappearance N.B.W. and process under Sections 82-83. Cr.P.C. was issued on 10.2.2010 and separate misc. proceeding was registered against the sureties and the notice was issued to them u/s 446, Cr.P.C. The proceedings of committal to the court of sessions were pending before the C.J.M., Siddharth Nagar. The applicant was directed to appear before the Court concerned but he did not appear before the Court concerned before passing the order dated 10.2.2010, N.B.W. was also issued against the applicant. The applicant has challenged the order dated 10.2.2010, passed by the C.J.M., Siddharth Nagar by way of filing the present petition. The proceedings pending against the C.J.M., Siddharth Nagar have already been challenged in the present application. It is submitted by the learned counsel for the applicant that in the present case the applicant is not named in the F.I.R. The applicant and O.P. No. 2 Shiv Kumar Soni are residing in the same locality, they are having their business shop also at a short distance. During investigation the statement of the witnesses namely Shiv Kumar Soni, Durgesh Kumar, Smt. Meena (wife of the deceased) Sri Chand Verma were recorded on 10.1.2002 and 12.1.2002 u/s 161, Cr.P.C. they have not made allegation against the applicant but in the present case a business man was killed, therefore, public and political persons, businessman made hue and cry and under such pressure the Investigating Officer has made an application against the accused only to say that a case has been worked out by the police. The applicant was having love affairs with a Muslim girl namely Khushnama alias Khushbu, her maternal uncle Dr. Abdul Wuhab become enemy of the applicant, he is an influential persons, under his influence the Investigating Officer recorded the statement of Ramji, Kallu, Shiv Kumar, Sanjay and Ram Babu on 17.2.2002 u/s 161, Cr. P.C. even according to their statement the involvement of the applicant is not established. The co-accused Kundan Maurya had died in a police encounter in the night of 12/13.2.2002 then the Investigating Officer moved an application on 23.2.2002, 5.4.2002, 1.5.2002 in the Court concerned for taking remand of the applicant, the applicant was remanded to the police custody but in the last parcha dated 29.4.2002 the charge-sheet has been submitted on 27.7.2002, after the submission of the charge-sheet. further investigation was done its closure report was submitted on 27.7.2002.

That in the present case even on the basis of the material collected by the Investigating Officer no offence u/s 120B read with Section 394/ 302, I.P.C. is made out against the applicant, the learned C.J.M., Siddharth Nagar has taken cognizance without applying the judicial mind and without perusing the record the impugned order dated 10.2.2010 has been passed issuing N.B.W. and process under Sections 82-83, Cr.P.C. against the applicant registering a case against the sureties. In case the applicant is prosecuted the applicant shall suffer irreparable loss including the order dated 10.2.2010, passed by the C.J.M., Siddharth Nagar.

In reply to the contention, it is submitted by the learned A.G.A. that it is too old matter in which after investigation the charge-sheet has been submitted u/s 394/ 302, I.P.C. after perusing the material collected by the Investigating Officer the learned C.J.M., Siddharth Nagar has taken cognizance and closure report of the further investigation dated 27.7.2002 is having no effect on the order dated 14.5.2002, passed by the learned C.J.M., Siddharth Nagar by which the cognizance has been taken against the applicant. The statement of the witnesses with regard to the constitution of the offence u/s 120B. I.P.C. are clearly disclosing the commission of the offence u/s 120B. I.P.C. the applicant has been charge-sheeted in Case Crime No. 1537 of 2003 under Sections 363 and 366, I.P.C. P.S. Basi district Siddharth Nagar. The applicant was released on bail by the High Court and thereafter, he did not appear before the Court concerned, he is absconding for the last many years that is why the case could not be committed to the court of sessions, ultimately the learned C.J.M., Siddharth Nagar has passed the order dated 10.2.2010 issuing N.B.W. and process under Sections 82-83, Cr. P.C. and a separate case has been registered against the sureties also u/s 446, Cr.P.C. The impugned order dated 10.2.2010 is not suffering from any illegality or irregularity and there is no ground to quash the proceedings pending against the applicant in the court of C.J.M. concerned, the present application is devoid of merits, the same may be dismissed.

Considering the submission made by the learned counsel for the applicant, learned A.G.A. for the State of U.P. and from the perusal of the record it appears that in the present case the applicant is not named in the F.I.R. during investigation the name of the applicant came to light, thereafter, he was arrested and sent to jail, he has been released on bail by the Hon''ble High Court in pursuance of the order passed by the High Court. he has been released from jail on 1.6.2002 but the order sheet of the C.J.M. shows that after release on bail, most of the dates he moved application for exemption of personal attendance, on 24.7.2003 also such an application was moved but the learned C.J.M., Siddharth Nagar passed order mentioning therein that the copies of the charge-sheet has been supplied to the applicant and the case is ready for committal to the court of sessions, thereafter, he did not appear in the Court, therefore, N.B.W. was issued against the applicant on 7.8.2003 and since then the applicant is absconding ultimately on 18.1.2010 process u/s 82. Cr.P.C. was issued on 10.2.2010. the process u/s 83 has been issued and separate misc. case was registered against the sureties by issuing notice u/s 446, Cr.P.C. The order dated 10.2.2010 is not suffering from any illegality or irregularity because it has been passed due to non-appearance of the applicant before the Court concerned whereas N.B.W. was issued against the applicant on 17.8.2003. The order dated 10.2.2010 has been passed after the expiry of six and half year. The order dated 10.2.2010 is not suffering from any illegality. The prayer for quashing the impugned order dated 10.2.2010 is refused. So far as the second prayer made by the applicant for quashing the proceedings pending in the court of C.J.M., Siddharth Nagar in Criminal Case No. 1114 of 2002 is concerned, which has been challenged at belated stage whereas the charge-sheet was submitted against the applicant on which the learned C.J.M., Siddharth Nagar as taken cognizance against the applicant on 14.5.2002 the Investigating Officer has submitted the charge-sheet after recording the statement of the witnesses u/s 161. Cr.P.C. According to the charge-sheet the names of 16 witnesses have been mentioned therein, the charge-sheet has been submitted against the applicant u/s 120B. I.P.C. it is not proper at this stage to record any finding by way of conducting the process of meticulous analysis but the statement of the'' witnesses Ram Ji, Misri Lal, Kallu, Shiv Kumar, Sanjay Kumar Verma and Ram Babu are prima facie disclosing the commission of the offence. There is sufficient material to proceed further against the applicant. The learned C.J.M., Siddharth Nagar has not committed any error in taking the cognizance on the charge-sheet submitted against the applicant. The applicant is absconding. The applicant will get proper opportunity to raise pleas at the time of framing of the charges but it is unfortunate that the applicant has not permitted the committed of the case to the court of sessions by way of appearing before the court of C.J.M., Siddarth Nagar. There is no good ground to quash the proceedings pending against the applicant in Criminal Case No. 1114 of 2002 u/s 120B read with Section 302/ 394, I.P.C. pending in the court of learned C.J.M., Siddharth Nagar therefore, such prayer is refused. The present application is devoid of merits.

Accordingly, it is dismissed.