Court No. - 50 Case :- CRIMINAL REVISION No. - 2653 of 2010 Petitioner :- Malkhan Singh Respondent :- State Of U.P. Petitioner Counsel :- R.C. Yadav Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J.
This Revision is directed against the order dated 1.7.10 whereby the
discharge application moved by the revisionist was rejected by the Additional
Sessions Judge/FTC No.2, Jalaun at Orai in S.T. No.68A/87.
It appears from the record that the occurrence had taken place on 2.9.86 in
which the father of the informant and some others were beaten. This FIR was
lodged at the police station. It is said that after sometime the revisionist beat
the father of the informant and others and due to his beating the father
succumbed to the injuries.
The investigation of the case in which the revisionist was shown to be an
accused in the FIR was done and after investigation charge sheet was
submitted against others except the revisionist. The statement of PW-1 was
recorded after framing of the charges against co-accused. The prosecution
moved an application under Section 319, Cr.P.C. for summoning the
revisionist. That application was allowed. Against that application the
revisionist approached the High Court. The High Court finding a prima facie
case made out against the revisionist confirmed the order for summoning the
revisionist under Section 319, Cr.P.C. Accordingly, the case of the revisionist
was dismissed by the High Court. Thereafter, the revisionist was put to trial
and at the stage of charge he again agitated that no case under Section 302,
IPC is made out against him. That application was rejected vide impugned
order by the trial court. Hence, this revision.
Heard Mr. R.C. Yadav, learned counsel for the revisionist, learned AGA
and perused the record.
It has been argued by Mr. Yadav that two first information reports were
lodged by the son of the deceased. In the first FIR the revisionist was not
named, however, in the second FIR the revisionist was named as the main
culprit who is said to have caused death of the father of the first informant.
Mr. Yadav says that when in the first FIR nothing was said against the
revisionist, second FIR cannot be said to be a reliable FIR. I do feel that this
argument of Mr. Yadav has no substance.
It is apparent from the record that the revisionist was not initially
summoned by the court and after taking cognizance on the charge sheet he
was summoned under Section 319, Cr.P.C. after recording of the evidence of
one witness. Against that order the matter went up to the High Court and the
High Court endorsed the order of the trial court summoning the revisionist
under Section 302, IPC. When that was the position and no further evidence
came on the record, there was nothing to alter that finding recorded by the
trial court that there was sufficient material against the revisionist to summon
him under Section 319, Cr.P.C. That being so, there can not be any substance
in this argument that in the first FIR the name of the revisionist was not
mentioned as the FIR is not a substantive piece of the evidence and the
substantive piece being the statement of the witnesses recorded before the
court the court was bound to consider only that material which was produced
before it and that material prima facie indicated that a case under Section 302,
IPC was made out. Thus, I am of the view that at the time of framing of the
charge a prima facie case was very well apparent from the record against the
revisionist and the trial court was perfectly justified in not discharging him
from that charge.
Consequently, I am of the view that the order passed by the trial court is not
an improper order liable to be quashed. Consequently, revision is dismissed.
Order Date :- 19.7.2010
T. Sinha