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Court No.50
Criminal Misc. Writ Petition No. 14460 of 2009
Somkesh.............................................Petitioner.
Vs.
State of U.P. and another..............Respondents.
Hon'ble Mrs. Poonam Srivastav,J.
Heard learned counsel for the parties and perused
the record.
This Criminal Writ Petition has been filed for
quashing the impugned order dated 22.06.2009 passed
by the learned Additional Sessions Judge/ Special Judge
(SC/ST) Act, Bulandshahar in Criminal Revision No.202
of 2009, Somkesh Vs. State of U.P. and others as well as
order dated 03.03.2009 passed by the learned
Additional Chief Judicial Magistrate, Court No.1,
Bulandshahar, in Case No.385 of 2007.
The submission of the learned counsel for the
petitioner is that the F.I.R. was registered at Case Crime
No.422 of 2007, under sections 376 IPC and 3(2)(5)
S.C./S.T. Act, P.S.Khurja Nagar, District-Bulandshahar.
The name of the accused mentioned in FIR was Hirdesh
Gupta, S/O Hoti Lal. Name of the present petitioner was
included during the course of investigation. The trial of
the named accused Hirdesh Gupta was separated and
proceeded as S.T.No.1210 of 2005. The certified copy
of the judgement is annexed as Annexure No.5 to the
writ petition, dated 5.10.2006, whereby the accused has
been acquitted. The submission of the learned counsel
for the petitioner is that the main accused has already
been acquitted and now framing of charge to continue
the trial against the petitioner is nothing but abuse of
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the process of the court.
Learned counsel for the petitioner submits that
since the same evidence and the same allegation is also
in the instant trial, continuance of the trial for a second
time is liable to be stopped. This fact was brought to
the notice of the concerned Sessions Judge at the time
of discharge. In the circumstances, rejection of the
discharge application is liable to be interfered. Reliance
has been placed of two decisions in the case of Maya
Devi and others Vs. State of U.P., reported in 2006
(56) ACC, page 26 (Hindi) and in the case of
Rajendra Kumar Vs. State of U.P. and another,
reported in 2006 (56), page 116.
After hearing learned counsels for respective
parties and going through record, it is clear that
petitioner is not named in the first information report,
no overt role is attributed to him whereas accused who
was alleged to have eloped with victim and married her,
has been given a clear verdict of acquittal. According to
prosecution, boy and girl had stayed in the house of
present petitioner for a single day, therefore, petitioner
has also been arrayed as an accused.
Taking into consideration principles of stare decisis
laid down in various decisions, formality of going
through a de novo trial in respect of a single accused is
only wastage of time, energy and money since main
accused has been acquitted. This fact was liable to be
taken into consideration by the court below and
discharge application was also liable to be allowed.
For the reasons discussed above, impugned orders
dated 22.6.2009 passed by Additional Sessions
Judge/Special Judge (SC/ST) Act, Bulandshahar and
3.3.2009 passed by Additional Chief Judicial Magistrate,
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court no.1, Bulandshahar are quashed. Proceedings
pending before the Magistrate is set at naught.
Petitioner will not have to face the trial. He is entitled to
be given a clear acquittal as that of accused Hirdesh
Gupta son of Hoti Lal. The instant petition is allowed.
Dated : 27.01.2010
pkc