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IN THE HIGH COURT OF ALLAHABAD
Rajeev Misra, J.
Nitin Jaiswal – Applicant
Versus
State of U.P. and Another – Opposite Parties
Application U/S 482 No. - 25681 of 2018
Decided On : 10-09-2020
Code of Criminal Procedure, 1973 – Sections 200, 202, 482, 245 – Penal Code, 1860 – Sections 143, 456 and 427 – Quash of Proceedings – Order Challenged – Application under Section 482 Cr.P.C. has been filed by applicant Nitin Jaiswal (a co-accused) challenging order passed by Additional District Judge Ist, Court no.1, Bareilly in Complaint Case (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District- Bareilly, whereby application filed by Complainant-Opposite Party No.2, Nirmal Singh Garewal, to the effect that he be provided Government Counsel to conduct the complaint case, as same has been transferred to Court of Sessions, was allowed and it was held that proceedings of above mentioned complaint case shall be conducted by ADGC (Criminal) and shall proceed in accordance with Chapter (XVIII) Cr.P.C, as well as order also passed by Additional District Judge-Ist, Court No.1 Bareilly, by which application filed by accused-applicant Nitin Jaiswal and others co-accused, praying therein that since proceedings of aforesaid complaint case are irregular/illegal, hence liable to be dropped, was rejected and 25.06.2018 was fixed as the next date for framing of charges under Sections 147, 458 and 427 I.PC, against accused Nitin Jaiswal, Adesh Jaiswal, Sachin Jaiswal, Rajoo Jaiswal, Annu Jaiswal and Manish Goel. –
Finding of the Court:
Effect of aforesaid orders is that the validity of the summoning passed by Magistrate against accused including present applicant has been upheld up to the Apex Court – The ground urged by learned Senior Counsel that the applicant and other accused have been summoned without deciding the protest petition filed by complainant against the third final report is a ground which was available at the time of challenging the summoning order passed by court-below before this Court as well as the order of this Court before Apex Court – It is well settled that if a ground available is not taken shall be deemed to have been taken. – Issue can be examined from another angle also – A subsequent 482 Application is maintainable provided new facts have emerged – However, in the present case, no such new fact has been brought on record on the basis it could be said that challenged to the proceedings of complaint case can be made. –
Result: Application Allowed In Part
JUDGMENT :
1. This application under Section 482 Cr.P.C. has been filed by applicant Nitin Jaiswal (a co-accused) challenging order dated 25.01.2018 passed by Additional District Judge Ist, Court no.1, Bareilly in Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 143, 456 and 427 I.P.C., P.S.-Kotwali Bareilly, District- Bareilly, whereby application dated 5.12.2017 (paper no. 70 Kha) filed by Complainant-Opposite Party No.2, Nirmal Singh Garewal, to the effect that he be provided Government Counsel to conduct the complaint case, as same has been transferred to Court of Sessions, was allowed and it was held that proceedings of above mentioned complaint case shall be conducted by ADGC (Criminal) and shall proceed in accordance with Chapter (XVIII) Cr.P.C, as well as order dated 26.03.2018 also passed by Additional District Judge-Ist, Court No.1 Bareilly, by which application (Paper no. 71 Kha 1) filed by accused-applicant Nitin Jaiswal and others co-accused, praying therein that since proceedings of aforesaid complaint case are irregular/illegal, hence liable to be dropped, was rejected and 25.06.2018 was fixed as the next date for framing of charges under Sections 147, 458 and 427 I.PC, against accused Nitin Jaiswal, Adesh Jaiswal, Sachin Jaiswal, Rajoo Jaiswal, Annu Jaiswal and Manish Goel.
2. I have heard Mr. Anoop Trivedi, learned Senior Counsel assisted by Mr. Vibhu Rai, learned counsel for applicant, learned A.G.A. for State and Mr. Sikandar B. Kochar learned counsel representing complainant opposite party no.2. When the matter was heard on 07.08.2020, Mr. Sikandar B. Kochar, learned counsel for opposite party no.2 submitted that he shall file fresh written argument on 12.08.2020. However, no fresh fresh written arguments have been filed by him.
3. It transpires from record that an incident occurred on 21.10.2012 at 6.00AM at 126A Civil Lines, District-Bareilly. In respect of aforesaid incident, an F.I.R. dated 21.10.2012 was lodged by Nitin Jaiswal, which came to be registered as Case Crime No. 2658 of 2012 under Sections 452, 307 I.P.C. P.S.-Kotwali Bareilly, District-Bareilly. In the aforesaid F.I.R., three persons namely Nirmal Singh Garewal, Jaspreet Singh Garewal and Tarnpreet Singh Garewal were nominated as named accused.
4. Police proceeded with investigation of above mentioned case crime number. Upon completion of statutory investigation in terms of Chapter XII Cr.P.C, Police submitted a charge-sheet dated 30.11.2012 in Case Crime No. 2658 of 2012 under Sections 452, 307 I.P.C. P.S.-Kotwali Bareilly, District-Bareilly against all named accused i.e. Nirmal Singh Garewal, Jaspreet Singh Garewal, Tarnpreet Singh Garewal. After submission of aforesaid charge-sheet cognizance was taken by concerned Magistrate and thereafter case was committed to Court of Sessions. Accordingly S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and others) under Sections 452, 307 IPC, P.S Kotwali Bareilly, District Bareilly came to be registered.
5. In respect of an another incident, which is alleged to have occurred on 21.10.2012 at 3.00 AM. at 126 Civil Lines, District-Bareilly, opposite party no.2, Nirmal Singh Garewal filed an application under Section 156 (3) Cr.P.C., in Court of C.J.M. Bareilly, which was registered as Misc. Case No. 986 of 2012. Same was allowed by concerned Magistrate.
6. As a consequence of above, an FIR dated 25.11.2012 came to be registered as Case Crime No. 2675 of 2012 under Sections 307, 452, 427, 504, 506, 308, 436 and 392 IPC, PS-Kotwali Bareilly, District-Bareilly. wherein Opposite Party no.2 Nirmal Singh Garewal was shown as first informant, while present applicant along with 5 others namely Sachin Jaiswal, Adesh Jaiswal, Manish Goel, Annu Jaiswal and Raja Jaiswal were nominated as named accused.
7. On registration of above F.I.R., Police undertook statutory investigation of same in terms of Chapter XII Cr.P.C. Upon completion of same, Investigating Officer su
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