IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 332 of 2004 Amit Agarwal S/o Sri Satish Chandra Agarwal R/o Main Bazar, Town & P.S. Lalkuan, Haldwani, District Nainital. ...…………. Petitioner Versus 1. State of Uttaranchal through Secretary Home, Government of Uttaranchal, Dehradun. 2. Director General of Police Uttaranchal, Dehradun. 3. Senior Superintendent of Police District Nainital. 4. Investigating Officer of Case Crime No. 632 of 2003 At Police Station Lalkuan, Haldwani, District Nainital. 5. Chief Judicial Magistrate, Haldwani, District Nainital. 6. Sri B.L. Patwari S/o Sri Suraj Bhan R/o Gali Nainital Bank, Town and P.S. Lalkuan, Distt. Nainital. 7. Suresh Singh Rawat S/o Sri Kundal Singh R/o Gali Nainital Bank, Town &. P.S. Lalkuan, District Nainital. ...…………. Respondents Mr. B.S. Adhikari, Advocate for the petitioner. Mr. M.A. Khan, Brief Holder for respondents No. 1 to 5. Mr. Rakesh Thapliyal, Advocate with Mr. Lalit Sharma, Advocate for respondents No. 6 and 7. Hon’ble Prafulla C. Pant, J. Heard learned counsel for the parties. 2) By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the proceedings taken up by Judicial Magistrate, Haldwani, and he has further sought a direction that said authority should be directed to comply with the directions issued by the Division Bench of this Court. 3) Brief facts of the case are that a first information report was lodged by the petitioner which was registered as Crime No. 632 of 2003, at police station Lalkuan, in respect of offence punishable under Section 307 of I.P.C. against accused B.L. Patwari (respondent No. 6) and Suresh Singh Rawat (respondent No. 7). However, after investigation, it appears that it was found to be a case of accidental fire and charge sheet is filed in respect of offence punishable under Section 338 of I.P.C. only, against respondent No. 7 Suresh Singh Rawat. 4) Learned counsel for the petitioner submitted that a forgery has been committed by scoring off name of accused B.L. Patwari from the charge sheet. It is further pleaded that to favour the accused charge sheet has been filed only in respect of offence punishable under Section 338 of I.P.C., in a case of offence punishable under Section 307 of I.P.C. 5) Respondents No. 1 to 5 filed their separate counter affidavits / short counter affidavits, while respondents No. 6 and 7 filed their joint counter affidavit. In the counter affidavit filed by Harish Chandra Panda, Station Officer of police station Lalkuan, it is explained that how the charge sheet was filed in respect of offence punishable under Section 338 of I.P.C., and as to how name of B.L. Patwari was struck off. Paragraph No. 7 of said counter affidavit is reproduced below: “That the contents of para 5 of the petition are not admitted. Infacat on 02.10.03 S.I. – R.L. Gangwar of Police Station Lalkuan alongwith police force was on duty to maintain law and order in procession of Agarsain Jayanti vide G.D. No. 26 dated 02.01.03 at 16.50 hours and immediately after that at 17.00 hours Shri Satish Agarwal father of the petitioner received gun shot injuries and a F.I.R. was lodged by the petitioner at 21.15 hours on 02.10.2003 at police station Lalkuan. Prior to the lodging of the F.I.R., S.I. –R. L. Gangwar reported back to the police station vide G.D. No. 33 at 19.00 hours on 02.10.2003 and made an endorsement to the affect that during Agarsain Jayanti procession some of the participants were firing shorts in the air and during such firing near Jagdish Hotel injuries were caused to Shri Satish Chandra Agarwal by gun shot fired by respondent No. 7 Suresh Singh from licensed gun of Shri B.L. Patwari respondent No. 6. The investigation revealed that the injuries were caused to Shri Satish Chandra Agarwal while the said Suresh Singh was trying to open the barrel of the licensed gun of B.L. Patwari. It is pertinent to mention here that since no offence U/S 307 I.P.C. was made out after investigation, chargesheet No. 109/03 dated 11.10.03 was submitted against Shri B.L. Patwari and Shri Suresh Singh U/S 338 I.P.C. as per the evidence collected during investigation. Separate chargesheet U/S 27 / 25 Arms Act was submitted against accused Suresh Singh and proceedings U/S of 30 of Arms Act were also initiated against Shri B.L. Patwari. The said chargesheet U/S 338 I.P.C. was sent to Prosecuting Officer concerned through C.O. Haldwani for being filed before the court concerned. The P.O. concerned returned the said chargesheet with the opinion that the evidence collected during investigation is not sufficient to proceed against Shri B.L. Patwari U/S 338 I.P.C. as such his name may be struck off from the body of the chargesheet. He also opined that name of the persons who have given affidavits to the Investigating Officer during investigation may also be included in the list of witnesses mentioned in the chargesheet. The then I.O. had mentioned the aforesaid facts in the supplementary case diary dated 02.01.04. In compliance of direction given by C.O. concerned on the basis of opinion given by the Prosecuting Officer, name of Shri B.L. Patwari was struck off from the body of chargesheet and names of said persons who filed affidavits were included in the list of witnesses mentioned in the chargesheet.” Learned counsel for the petitioner argued that the Prosecuting Officer has no power to get deleted name of co-accused B.L. Patwari from the chargesheet. I do agree with the argument, but in the facts and circumstances of the present case, this Court does not find it a fit case for interference under Section 482 of Cr.P.C. 6) The above quoted paragraph from the counter affidavit explains that there is no forgery committed by anyone. It is also pertinent to mention here that in respect of offence punishable under Section 338 of I.P.C., on confession of the accused Suresh Singh Rawat (respondent No. 7), the case has already been closed, after said accused is awarded sentence of fine of Rs. 500/- vide order dated 27.06.2004. As to the compliance of the order passed by Division Bench of this Court is concerned, from Annexure –11 to the petition, it is clear that Division Bench consisting of Hon’ble Mr. Justice Irshad Hussain and Hon’ble Mr. Justice J.C.S. Rawat, in Criminal Writ Petition 992 (M/B) of 2003, observed that it is not a fit case in which further investigation under Section 173(8) of Cr.P.C. can be directed. It is further observed by the Division Bench that in case the charge is not properly framed, the petitioner will have the remedy to agitate the matter before the higher forum by filing a revision. It is also pertinent to mention here that offence punishable under Section 338 of I.P.C. is a summons trial. 7) In the above circumstances, this petition moved under Section 482 of Cr.P.C. is devoid of merits, and is liable to be dismissed. The petition is dismissed. (Prafulla C. Pant, J.) Dt. May 20, 2010. H. Negi