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Vinod Kumar Dubey v. State Of U.P And Others - APPLICATION U/s 482 No. 11716 of 2005  RD-AH 5484 (9 November 2005)
Court No. 54
Criminal Misc. Application No. 11716 of 2005.
Vinod Kumar Dubey Vs. State of U.P. and another.
Hon. Mrs. Poonam Srivastava, J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The facts giving rise to the dispute is that a first information report was lodged by the father of the deceased at case Crime No. 19-A of 1998, under Section 302 I.P.C. Police Station Chowk, District Varanasi against the applicant no. 1 and another constable. A final report was submitted after completing the investigation. The contesting opposite party filed a Writ Petition No. 2432 of 1998 and this Court directed that the investigation may be conducted by an officer equivalent to the rank of Circle Officer. After completing the investigation, once again final report was submitted which was accepted by the Chief Judicial Magistrate, Varanasi on 8.2.2005. The contesting opposite party preferred a revision before the Sessions Judge, Varanasi vide Criminal Revision No. 83 of 2005 and by means of the impugned order, the Sessions Judge, Varanasi remanded the case to get the investigation completed in terms of the direction given by this Court in Writ Petition No. 2432 of 1998 vide order dated 14.5.1998. The submission on behalf of the applicant is that the opposite party no. 2 is not a complainant and as such he had no locus standi to institute the criminal revision and second objection is that in view of the decision of the Apex Court in the case of Bhagirath Vs. Kana Rai and another, 2001 Criminal Law Journal, 122 (S.C.), the Supreme Court had ruled that the High Court can not reverse the order and ask the Magistrate to take cognizance without giving any notice to the accused. On the basis of said decision, it is argued that since no notice was given to the accused and order accepting final report was set aside, it is not tenable in law as it has been behind back of the accused. On the basis of argument advanced by counsel for the applicant, it is correct that the accused were not given any opportunity of hearing. In the circumstances, issue notice to opposite party no. 2 returnable at an early date. He may file counter affidavit within three weeks from the date of receipt of notice. Learned A.G.A. shall also file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List immediately after expiry of the aforesaid period.
Till the next date of listing, operation of the impugned order dated 11.7.2005 passed by learned Special Judge (SC/ST Act), Varanasi in Criminal Revision No. 83 of 2005, Pawan Kumar Dubey Vs. State of U.P. and others, under Section 302 I.P.C. Police Station Chowk, District Varanasi, shall remain stayed.
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