(A.M. Khanwilkar and Sanjiv Khanna, JJ.)
Gulshan __________________________________________ Appellant;
v.
State of Uttar Pradesh and Others __________________ Respondent(s).
Criminal Appeal No. 703 of 2021 (Arising out of SLP(Crl) No. 4490/2016), decided on July 29, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal takes exception to the judgment and order dated 02.03.2016 passed by the High Court of Judicature at Allahabad in Criminal Revision No. 602/2016, whereby the order passed by the Court of Additional Sessions Judge, Fast Track Court, Aligarh, dated 04.01.2016 in Sessions Trial No. 192/2015 has been affirmed by the High Court.
3. By that order the Trial Court rejected the application moved by the prosecution for summoning the persons named in the application including respondent nos. 3 to 5 under Section 319 of the Code of Criminal Procedure. Be it noted, this appeal is pressed only against respondent nos. 3 to 5.
4. The Trial Court adverted to the FIR, statements of prosecution witnesses under Sections 161 and 164 of Cr.P.C., including the statements made before the Court mentioning the involvement of respondent nos. 3 to 5 in the commission of the offence in question. Nevertheless, the Trial Court proceeded to reject the application. The High Court summarily dismissed the revision application filed by the appellant. The offence registered as Crime No. 213/2014 pertains to Sections 376D, 147, 323, 336 of the IPC, registered with Police Station Pisawa, District Aligarh.
5. We refrain from dilating on the details of the evidence to avoid any prejudice being caused to either side during the trial of the case. Suffice it to notice that the FIR mentions the names of the respondent nos. 3 to 5 as also the statements of the prosecution witnesses recorded during the investigation and given before the Court.
6. In our opinion, the Trial Court committed manifest error in rejecting the application for summoning and proceeding against respondent nos. 3 to 5 herein, namely, Vinit, Madna and Taran in connection with the offence despite the above position.
7. Although, we are inclined to partly allow this appeal, it is made clear that the trial against respondent nos. 3 to 5 must proceed in accordance with law on the basis of the legal evidence brought on record by the prosecution during the trial. We order accordingly.
8. Accordingly, the impugned orders passed by the High Court and the Trial Court are set aside. Instead, application no. 18kh filed by the prosecution for issuing summons only qua respondent nos. 3 to 5 herein, stands allowed.
9. We reiterate that all the contentions available to both the sides during the trial are left open to be decided on its own merits in accordance with law.
10. Pending application(s), if any, shall stand disposed of.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 4490/2016
Gulshan __________________________________________ Petitioner
v.
The State of Uttar Pradesh & Ors ____________________ Respondent(s)
Date : 29-07-2021 This petition was called on for hearing today.
(Before A.M. Khanwilkar and Sanjiv Khanna, JJ.)
For Petitioner(s) Mr. Dinesh Kumar Garg, AOR
For Respondent(s) Mr. Vinod Diwakar, AAG
Mr. Shashank Shekhar Singh, AOR
Mr. Anurag Dubey, Adv.
Mr. Pramod Kumar, Adv.
Mr. S. R. Setia, AOR
UPON hearing the counsel the Court made the following
ORDER
11. Leave granted.
12. The appeal is partly allowed in terms of the signed order.
13. Pending application(s), if any, shall stand disposed of.
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