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Sanju And Others v. State Of U.P. And Others - APPLICATION U/s 482 No. 14193 of 2005  RD-AH 5340 (8 November 2005)
Court No. 54
Criminal Misc. Application No. 14193 of 2005
Sanju and others Vs. State of U. P. and others.
Hon. Mrs. Poonam Srivastava, J.
Heard learned counsel for the applicant and learned A.G.A for the State.
This application has been filed for quashing the proceedings in case no. 1817 of 2004, under Sections 498-A, 323, 504 I.P.C., pending in the court of Special Chief Judicial Magistrate, Agra.
The grievance of the applicants is that an application under Section 156(3) Cr.P.C. moved on behalf of opposite party no. 4 has been treated as a complaint. The Chief Judicial Magistrate, Agra recorded the statements of the complainant and witnesses under Sections 200 and 202 Cr.P.C., which cannot be done. The proceedings of complaint case could not be adopted. The second argument on behalf of the applicants is that the Chief Judicial Magistrate did not bather to comply the provisions of Section 210 Cr.P.C. and issued process on 2.6.2004 summoning the applicants under Sections 498-A, 323, 504 I.P.C. The third objection raised by the counsel for the applicants is that the courts at Agra has no jurisdiction to try the case and in view of Section 177 Cr.P.C. the proceedings could not continue in district Agra.
I have given careful consideration to the arguments advanced by counsel for the applicants. The first objection regarding an application under Section 156(3) Cr.P.C. could not be treated as a complaint, is not acceptable. The Apex Court in the case of Joseph Mathuri Vs. Sachchidanand Hari Sakshi, 2001 (Suppl.) A.C.C., 957, held that the view of the High Court is totally erroneous and an application under Section 156(3) Cr.P.C. can always be treated as complaint and the Magistrate can proceed after recording statement under Sections 200 and 202 Cr.P.C. In the case of Suresh Chand Jain Vs. State of U.P., 2001 (42) A.C.C. 459 , similar view was expressed, which has been followed by this Court in the case of Gulab Chand Upadhyay Vs. State of U.P., 2002 (44) A.C.C., 670 where it has been ruled that in the event, the Magistrate is of the view that the allegation in the application under Section 156(3) Cr.P.C. is complete and it does not require any investigation by the police and complainant is in possession of complete details of the accused as well as the witnesses and neither recovery is needed nor any material evidence is required to be collected, the Magistrate is fully competent to adopt the procedure of a complaint case under Chapter XV Cr.P.C. The next argument advanced by the counsel is in respect of compliance of Section 210 Cr.P.C., which provides procedure to be followed when there is a complaint case and police investigation in respect of the same offence. In the instant case, admittedly, no investigation is continuing by the police. The submission is that a complaint was given to Superintendent of Police, Firozabad on 5.12.2003 but the counsel could not state that whether any investigation is continuing or not on the basis of the said complaint. No case crime number has also been mentioned in the complaint. Besides, in the event, investigation is continue, then it is necessary that this fact should be brought to the notice of the Magistrate during inquiry or trial held by him. Since the Magistrate, at no point of time, was apprised of any investigation whatsoever continuing in respect of the same offence, Section 210 Cr.P.C. will not bar the proceedings in the complaint case. The last objection regarding jurisdiction of the courts at Agra is concerned, that is to be seen during the trial as it is for the prosecution to establish that the offence alleged was committed within the jurisdiction of Agra courts or not. At this juncture, it is not possible to examine the offence of demand of dowry and cruelty to the victim. In the circumstances, the objections raised by the applicants has no substance and application is accordingly rejected.
However, since the complaint case is continuing and husband, father-in-law and mother-in-law are facing the proceedings, I permit the applicant nos. 2 and 3 to appear through counsel and claim discharge at the appropriate stage, which shall be decided by the court below in accordance with law after giving an opportunity to the applicants. The applicants shall not be compelled to appear personally till the application for discharge is decided by the court below. No coercive measure shall be taken against the applicants, till the application for discharge is decided.
The applicant no. 1 is husband and in the event, he appears before the court concerned within three weeks from today and moves bail application in case No. 1817 of 2004, under Sections 498-A, 323, 504 I.P.C., the same shall be considered and disposed of by the court below in accordance with law expeditiously, if possible on the same day.
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