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ISLAM AND OTHERS versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Islam And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. 15139 of 2005 [2005] RD-AH 5283 (8 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 54

Criminal Misc. Application No. 15139 of 2005.

Islam and others Vs. State of U.P. and another.

Hon. Mrs. Poonam Srivastava, J.

Heard Sri Vivek Kumar Singh and Sri Ajay Kumar Singh, learned counsel for the applicants and learned A.G.A for the State.

This application has been filed challenging the order dated 21.9.2005 passed by Sessions Judge, Meerut in Criminal Revision No. 339 of 2005, Smt. Afsari Vs. State of U.P., whereby the application 7- Kha moved on behalf of the applicants was rejected. An application under Section 156(3) Cr.P.C. was moved before the Chief Judicial Magistrate, Meerut, which is Annexure-2 to the affidavit, under Section 302/34 I.P.C. against all the four applicants. A police report was called for. The police submitted its report on 10.7.2005 stating therein that no first information report has been registered in respect of the offence alleged in the application under Section 156(3) Cr.P.C. The learned Magistrate rejected the application vide order dated 18.7.2005 which was challenged in Criminal Revision No. 339 of 2005, Smt. Afsari Vs. State of U.P. The applicants moved an application in the criminal revision that the entire facts have not been brought to the notice to the revisional court. In the circumstances, the applicants, who were arrayed as an accused in the application under Section 156(3) Cr.P.C., may be given an opportunity of hearing. It was further submitted that the revision is not maintainable. This application has been rejected by means of the impugned order which is challenged in this application.

The submission on behalf of the applicants is that Section 401 (1) Cr.P.C. provides that no order under this Section shall be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defense. In support of this contention, two decisions have been filed, one of the Apex Court in the case of Bhagirath Vs. Kana Ram and another, 2001 Criminal Law Journal, 122. In the said case, an order of High Court was challenged, wherein the High Court of Rajasthan directed the court below to take cognizance against the accused. The Apex Court was of the view that the High Court could not pass an order directing to take cognizance for an offence punishable under Section 307 I.P.C. without giving an opportunity of hearing to the accused. The Apex Court remanded the case to Rajasthan High Court for a fresh decision. In the instant case, no such order has been passed against the accused or any person including the present applicants. No doubt the application under Section 156(3) Cr.P.C. was filed arraying the applicants as an accused but the learned Magistrate rejected the application, which has been challenged in revision. In the circumstances, the argument of the counsel for the applicants that in view of Section 401(2) Cr.P.C. they are entitled for an opportunity of hearing appears to be without any basis. The applicants are not an accused till date. Neither any direction has been given for registering a first information report against the applicants nor cognizance has been taken by the court against them, therefore, they can not be said to be an accused. Another case relied upon by the counsel for the applicants is Anurag Tripathi Vs. State of U.P. and others, 2005 (52) A.C.C. 563. In this case the facts were altogether different. Emphasis was laid by counsel for the applicants on paragraph 12 of the said decision. For ready reference part of paragraph 12 of the said decision is quoted below:-

".......In a criminal case, it is settled that no person has a right to be heard if no order has been passed against him. In the present case, neither cognizance was taken against them nor any order has been passed against them but since they themselves approached the Court by moving impleadment application, they were also heard."

In the circumstances, I am of the view that the order of the learned Sessions Judge, Meerut does not call for any interference. It has rightly been held that the applicants have no locus standi to be heard in the revision till the moment, the matter is between the revisionist contesting opposite party and the State. It is only when an order is passed for registration of the first information report against the applicants, they can be termed as an accused "or any other person aggrieved" therefore, I am not inclined to interfere at this stage. The Magistrate has given a detail finding that he is of the view that no cognizable offence is made out and death was accidental and therefore, rejected the application. In the circumstances, till an order is passed for registration of the first information report, the applicants do not come in the picture at all.

For the reasons discussed above, I do not find any merit in this application and the application is accordingly rejected.

Dt/-17.10.2005.

Rmk.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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