JOIN USAn Uttar Pradesh Police constable moved the Delhi High Court on Wednesday challenging framing of charges against him for the alleged murder of the Unnao rape survivor's father and having framed him for possession of illegal arms.
The plea has been listed for hearing on Thursday before Justice Sanjeev Sachdeva.
Amir Khan, who is in judicial custody, sought quashing of framing of charges, including murder and criminal conspiracy, against him alleging that the August 13 order was "illegal, improper, prejudicial and against established principles of criminal procedure code".
"The trial judge in the impugned proceedings order and charges framed admitted that there is no role of the petitioner in the conspiracy of assaulting/ beatings to the survivor's father. Thus, making the police officials including petitioner (Khan) liable for murder is untenable illegal," the plea said.
The lower court is also scheduled Thursday to commence trial in the alleged murder of the rape survivor's father and illegal arms case against him.
The woman, allegedly raped by expelled BJP MLA Kuldeep Singh Sengar in 2017 when she was a minor, is battling for life after a truck rammed into her car in Uttar Pradesh's Rae Bareli on July 28, killing two of her aunts. Her lawyer was also injured in the accident.
In the case related to her father's death, the trial court on August 13 had charged Sengar and nine others for the offences punishable under sections 302 (murder), 506 (criminal intimidation), 341 (wrongful restraint), 120B (criminal conspiracy) and 193 (false evidence) of the IPC and under section 25 of the Arms Act.
The charges framed against them also included sections 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapons or means), 166 (public servant disobeying law, with intent to cause injury to any person) and 167 (public servant framing an incorrect document with intent to cause injury) of IPC.
The court had also cancelled the bail of three UP police officials -- the then Makhi police station's in-charge Ashok Singh Bhadauria, Sub Inspector Kamta Prasad and Khan -- accused in the case, and sent them into custody after the charge of murder was framed against them.
Khan, in his petition, said that there was no proximity of events in the alleged murder and illegal arms cases and they cannot be clubbed and tried jointly.
The plea claimed that trial court has wrongly clubbed the two cases as one was sessions triable and other was magisterial triable case.
The offences mentioned in the murder case are sessions triable and offences in the Arms Act case were magistrate triable. The effect of these orders is the 'de novo trial' which was not the mandate of the Supreme Court, it said.
It added that the charge sheet of murder case was supplied to Khan only after framing of charges which was a "grave illegality".
The trial court clubbed two trials which were separately going on. The competent court in Lucknow has already framed charges and fixed the matter for prosecution evidence in the murder case against five accused persons only. Charges in the Arms Act case were yet to be framed, it said.
He added that he was directed to record the FIR on the directions of his seniors/ co-accused and being the duty officer, he was bound to record the FIR.
If he is liable for conspiracy just for recording the FIR, all the police personnel present in the police station at that time should have been accused in the illegal arms case, the plea said.
The trial court had said Kuldeep Sengar along with his aides had entered into a "criminal conspiracy" to deter and silence the Unnao rape survivor's father so that he cannot pursue with his complaint.
It had also framed charges under sections 201 (causing disappearance of evidence of offence, or giving false information to screen offender), 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) and 466 (forgery of record of court or of public register) of IPC.
The accused persons denied the charges and claimed trial.
With charges framed for murder, the maximum punishment entails death penalty while the minimum is life imprisonment.
The court had said that 'prima facie' there were grounds to frame joint charges against the accused persons in two cases, including that 43 witnesses in both cases were common.
It had further noted the submissions of CBI counsel that in order to execute the common purpose of conspiracy, "the deceased father was allegedly paraded naked and beaten 'black and blue' in full public view, and then on being rescued by the police, was taken to the police station Makhi, but then with the active connivance of the police officials, accused in the case, a country-made pistol and four live cartridges were planted upon the deceased father of the survivor to put him behind bar, to stifle any protest over their earlier case of alleged rape."
The rape victim's father was arrested on April 3, 2018, and died in judicial custody on April 9, 2018.