Dismissed

Surendra Kumar Singh and Another v. State of U.P. and Another

Allahabad HC6 Mar 2019A482/26769/2010

Case brief

AI extract

What is this about?

This court dismissed an application under Section 482 Cr.P.C. seeking to quash criminal proceedings. The court held that the present appeal could not quash the proceedings because the applicant did not specifically pray for the quashing of the trial court's order summoning them under Section 319 Cr.P.C., rendering the application maintainable but dismissible.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; relief to quash proceedings refused.

Surendra Kumar Singh and Another Vs State… — Civil Procedure and Limitation | Allahabad HC (2019)

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Judgment reserved on 20.12.2018 Judgment delivered on 06.03.2019

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Court No. - 70

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Case :- APPLICATION U/S 482 No. - 26769 of 2010

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Applicant :- Surendra Kumar Singh And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- P.K.Singh,Ajay Kumar Singh Counsel for Opposite Party :- Govt. Advocate,Manish Tiwary

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Hon'ble Sanjay Kumar Singh,J.

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Heard Sri Ajay Kumar Singh, learned counsel for the applicants, Sri Praveen Kumar Singh, Advocate holding brief of Sri Manish Tiwari, learned counsel for the opposite party no.2 and learned AGA for the State.

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This application under Section 482 Cr.P.C. has been filed by the applicants Surendra Kumar Singh and Saurabh Prashant with a prayer to quash the proceeding of S.T. No. 288 of 2006 (State Vs. Ashok Kumar Sharma), under Sections 308, 325, 323, 504, 506 IPC, Police Station Cant. District Varanasi pending in the Court of Additional Sessions Judge, Court No.13, Varanasi.

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Brief facts

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Brief facts of the case is that opposite party no.2 lodged FIR dated 13.8.2005 regarding the occurrence dated 3.7.2005 against Ashok Kumar Sharma, Saurabh Prashant (applicant no.2) Surendra Kumar Singh (applicant no.1) and one unknown person under Section 323, 325, 308, 504, 506 IPC at P.S. Cant., District Varanasi making allegation of assault to the opposite party no.2/informant by lathi, danda, kick and fist against all accused persons including the applicants. It is also alleged that on exhortation of Surendra Kumar Singh, co-accused Ashok Kumar Sharma with intention to kill the informant/opposite party no.2

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caused injury on his head by lathi, whereby, the opposite party no.2 received serious injury and fell down. The injured was taken to the hospital, on X-ray, the bone of skull was found fractured and grievous in nature and dangerous in nature. The Investigating Officer after investigation submitted charge-sheet against the coaccused Ashok Kumar Sharma. Pursuant thereto, trial of coaccused Ashok Kumar Sharma started. In the trial, statement of opposite party no.2 (informant/injured) was recorded as PW-1 on 13.10.2006, in which, the injured has made specific allegation against all the accused persons including the applicants. Thereafter, the prosecution moved an application dated 30.10.2009 (paper no. 111 kha) under Section 319 Cr.P.C. before the trial court to summon the applicants to face trial. In paragraph no.5 of the application dated 30.10.2009, it is also mentioned that the Investigating Officer has submitted charge-sheet against the co-accused Ashok Kumar Sharma only and at that time the applicants were absconding, therefore, due to want of their arrest, charge-sheet against the applicants could not be submitted. The said application dated 30.10.2009 (paper no. 111 kha) of the prosecution was objected from the side of the co-accused Ashok Kumar Sharma by filing the written objection dated 11.11.2009. The trial court by the impugned order dated 26.3.2010 allowed the application dated 30.10.2009 (paper no. 111 kha) of the prosecution and summoned the applicants in exercise of power under Section 319 Cr.P.C. to face trial. In the aforesaid background of the fact, the present application has been filed by the applicants to quash the entire proceedings of S.T. No. 288 of 2006 (State Vs. Ashok Kumar Sharma), under Sections 308, 325, 323, 504, 506 IPC, Police Station Cant. District Varanasi pending in the Court of Additional Sessions Judge, Court No. 13, Varanasi

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without challenging the order dated 26.3.2010 of the trial court, whereby the applicants have been summoned under Section 319 Cr.P.C. to face trial.

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Submissions on behalf of the applicants

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(i) It is submitted on behalf of the applicants that the trial court summoned the applicants to face trial without recording the statements of all the prosecution witnesses, without perusing the evidence on record. The trial court has also not recorded his satisfaction that there is possibility of conviction on the basis of statement of complaint. There is no evidence against the applicants.

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(ii) Considering the surrounding of facts and circumstances, nothing was happened with the opposite party no.2. The doctor is habitual to prepare forged medical report after taking illegal gratification.

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(iii) There is no evidence to the effect that the applicants have participated in the commission of occurrence, therefore, the entire criminal proceedings as mentioned above is liable to be quashed.

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Submission on behalf of learned AGA and opposite party no.2

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Per contra, learned AGA for the State/opposite party no.1 and learned counsel for the opposite party no.2 vehemently opposed the prayer made by the applicants by contending that:-

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(i) the prosecution has moved application dated 30.10.2009 (paper no. 111 kha) after recording the evidence of PW-1/injured on 13.10.2006 appended as Annexure no.2 to the application.

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(ii) specific allegation of assault was raised on behalf of the injured against the applicants since beginning in the FIR, investigation as well as before the trial court.

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(iii) during the course of investigation, the applicants were absconding, therefore, the proceedings of arrest of the applicants could not be completed. Under the circumstances due to want of their arrest charge-sheet was not submitted against the applicants by the Investigating Officer.

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(iv) trial court while allowing the application dated 30.10.2009 of the prosecution has considered all the facts, circumstances, allegations against the applicants/accused persons as well as material evidences available on record and thereafter recorded the sound reasons of his satisfaction to summon the applicants under Section 319 Cr.P.C.

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(v) from the material evidence on record more than prima facie offence is made out against the applicants, therefore, the trial court has rightly and legally summoned the applicants under Section 319 Cr.P.C. vide order dated 26.3.2010.

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(vi) it is vehemently urged on behalf of the opposite parties that the present application is not maintainable because the prayer has been made to quash the entire proceedings of aforesaid S.T. No. 288 of 2006 without any prayer to quash the order dated 26.3.2010 passed by trial court, whereby the applicants have been summoned to face trial.

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(vii) learned counsel for the opposite party no.2 vehemently urged that injured had received eight injuries. In the supplementary report dated 24.7.2005, doctor has mentioned that injury no.1 is grievous in nature and dangerous to life, which has not disputed from the side of the applicants. Photocopy of the medical examination report dated 3.7.2005 produced by learned counsel for the opposite party no.2 is kept on record.

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(viii) it is submitted that in the application, there is no prayer for

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quashing the order dated 26.3.2010, therefore, the present application is liable to be dismissed on this ground also. Lastly, it is submitted that there is no merit in the argument advanced on behalf of the applicants in view of well settled law, therefore, the present application is liable to be dismissed.

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Conclusion

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After hearing the argument of the learned counsel for the parties, perusing the record and considering the well settled principles laid down by the Apex Court in case of Hardeep Singh and others vs. State of Punjab and others, 2014 (3) SCC 92 , I find that from the material available on record, there is specific allegation of assault and causing injury against all the accused persons including the applicants to the injured in the FIR as well as in the statement of PW-1/injured recorded before the trial court. The trial court has considered all the aspects of the matter and recorded sound reasonings for summoning the applicants under Section 319 Cr.P.C.

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Presumption drawn and finding recorded by the trial court in the order dated 26.3.2010 cannot be said to be perverse or illegal in any manner. I also find force in the submission advanced on behalf of the opposite parties that the order dated 26.3.2010, whereby the applicants have been summoned to face trial, has not been specifically challenged in the present application, because there is no prayer in the present application for quashing of order dated 26.3.2010 of the trial court also.

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The facts stated on behalf of the opposite parties regarding the nature of injuries as mentioned above has not disputed from the side of applicants.

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This is not a case that name of the applicants first time surfaced

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in the statement of injured before the trial court. In this case, the applicants were named in the FIR with specific role of causing injury since beginning and there is no improvement in the statement of injured during trial, therefore, order dated 26.3.2010 is not liable to be interfered on any ground. There is no good ground to grant relief as claimed by the applicants, hence the same is refused .

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The application lacks merit and is, accordingly, dismissed.

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Order Date :- 6.3.2019 AK Pandey

Surendra Kumar Singh and Another v. State of U.P. and Another

Case brief

What is this about?

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Surendra Kumar Singh and Another v. State of U.P. and Another

Case brief

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