Guljar Singh and Others vs State of Uttar Pradesh and Another

Palok Basu, J.—This is an application u/s 482 Code of Criminal Procedure by Guljar Singh and seven others challenging the summoning order and further proceedings in complaint Janardan v. Gulzar and Ors. case No. 224/9/1989

Sri C. P. Tripathi, learned Counsel for the applicant, Sri S. K. Shukla, learned Counsel for the complainant and Sri B. B. Misra, learned A.G.A. have been heard. Since affidavits have been exchanged between the parties the matter is being finally disposed at the admission stage as prayed by the learned Counsel for the parties.

The short point for consideration in the instant case is as to whether the bar of Section 468 Code of Criminal Procedure would be applicable. It may be remembered that if only Section 323 IPC can be said to have been made out in the instant case on the facts stated in the complaint read along with the first information report lodged and the applicability of Section 144 IPC is ruled out, then it is admitted position that the bar would apply. It may be remembered that in the first information report the incident narrated was somewhat similar as is narrated in the complaint but the total number of accused were said to be three two of whom were having lathis and one man had been armed with a gun. In the complaint, however, the number of persons has been extended to eight and two persons were said to be armed with guns whereas the rest six were said to be armed with lathis. There is no gunshot injury on any one whatsoever but there are some contusions and abrasions on two persons as is alleged in the complaint. However, it is very doubtful as to whether a reading of the FIR would make out two persons receiving lathi injuries as that suggests causing of lathi injury only on one. Be that as it may, the magistrate has not applied, and rightly so, Section 147 IPC. If the allegations in the FIR are taken to be correct, it was a sudden marpit and there was no occasion for an unlawful assembly coming into existence. Under the circumstances while the magistrate was right in not bringing in Section 147 IPC he was certainly wrong in applying Section 144 IPC on the facts stated in the complaint and the FIR. Therefore, the applicability of Section 144 or 147 IPC having been ruled out, the complaint survives only for one section i.e. Section 323 IPC.

Coming to the applicability of Section 468 Code of Criminal Procedure it may be noticed that Clause (b) thereof would be attracted to the facts of the present case as the date of incident was said to be 9-8-1987. While the complaint was filed on 6-7-1989 i.e., much after one year limitation had expired. Under these circumstances this application must succeed as the alleged offence would be barred by time.

This application consequently succeeds and is allowed. The complaint and further proceedings in complaint case No. 224/IX/1989 Janardan v. Gulzar and Ors. pending on the court of Munsif, Karvi, distt Banda, are quashed.