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UDAIVEER ALIAS CHHOTE AND OTHERS versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Udaiveer Alias Chhote And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. 8724 of 2005 [2006] RD-AH 16096 (14 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 10

                    Crl. Misc. Application no. 8724 of 2005

Udaiveer alias Chhotey and others  . . . . . . . .  . . .  . . .   . .  Applicants.

                                        versus

State of U.P .and another . . . . . .  . .. .  . . . .  . . . . . .  . . . . Opp.Parties.                                                                                                                                                                                                                            

           ----

Hon'ble R.K.Rastogi,J.

This is an application under section 482 Cr.P.C. for quashing  the order dated 29.10.2004 passed by the Addl. Chief Judicial Magistrate, Court no. 5, Aligarh in criminal case no. 1572 of 2003, Jawahar Lal Vs. Udaiveer and others, and the order dated 6.10.2004 passed  by the Addl. Sessions Judge/Presiding Officer, Fast Track Court no.4, Aligarh in Criminal Revision no. 367 of 2004.

I have heard learned counsel for the  applicants and learned A.G.A. for the State at the admission stage and the case is being finally decided  after hearing their arguments at this stage.

The facts relevant for  disposal of this application are that   Jawahar Lal, O.P. no.2,  had filed a complaint against the applicants  under section 498-A I.P.C. and u/s ¾, Dowry Prohibition Act. The learned Magistrate recorded the statement of the complainant under section 200 Cr.P.C.  and of witnesses under section 202 Cr.P.C. Thereafter  he dismissed the complaint under section 203 Cr.P.C. on 19.6.2004 holding that  no case was made out against the accused. Aggrieved with that order  complainant filed  criminal revision no. 367 of 2004 in the court of  the Sessions Judge, Aligarh which was transferred  to the Fast Track Court no.4, Aligarh for disposal and it was heard and decided  by Sri Arvind Kumar Jain, then Addl. Sessions Judge/Presiding Officer, Fast Track Court no. 4, Aligarh. After perusal of the evidence  produced in support of the complaint he was  of the view that case under section 498-A I.P.C. and u/s ¾, Dowry Prohibition Act was made out against the accused persons. He, therefore, set aside the order of  dismissal passed by the learned Magistrate and passed an order  directing the Magistrate to summon the accused persons under section 498-A I.P.C. and u/s ¾, Dowry Prohibition Act. In compliance of that order  the learned Magistrate passed an order  on 29.10.2004 summoning the accused  persons mentioning in the order that  he was passing this order  of summoning in compliance of the order of the revisional court.  The applicants have moved this application under section 482 Cr.P.C. to  quash the aforesaid order dated 6.10.2004 passed by the Presiding Officer, Fast Track Court no. 4, Aligarh and the order dated 29.10.2004 passed by the Addl. Chief Judicial Magistrate, Court no.5, Aligarh.

It was submitted by the learned counsel for the applicants  that in the revision the revisional court can hold  after going through the evidence  that the finding recorded by the Magistrate was erroneous but he cannot make reappraisal of the  evidence a fresh and cannot substitute his own  findings on the basis of the evidence. He  further submitted that in the present case if the learned Addl. Sessions Judge was of the view that  finding of the  Magistrate  was erroneous, he after setting aside  that finding should have  remanded back the matter to the court of the Magistrate for re-appraisal of the evidence and to pass suitable order in the light of that re-appraisal of the evidence, but he could not pass an order  holding that prima facie case was made out against the accused, and so the Magistrate should pass an order  summoning the accused. He submitted that  above order passed by the learned Sessions Judge was erroneous and was passed without jurisdiction and the summoning order passed by the learned   Magistrate  in which he  has specifically stated that he was summoning the accused  persons in compliance of the order of the Addl. Sessions Judge is also vitiated. The learned A.G.A. appearing for the State  also conceded  this legal position.

The application under section 482 Cr.P.C. is, therefore, allowed and the order passed by the Addl. Sessions Judge/Presiding Officer, Fast Track Court no. 4, Aligarh whereby he had held that prima facie  case against the accused persons  under section 498-A I.P.C. and u/s ¾ Dowry Prohibition Act  was made out and had directed the Magistrate to summon the accused for these offences  and subsequent order passed by the learned Magistrate on 29,.10.2004 summoning the accused persons  in compliance of that order are set aside. The learned Magistrate shall after receipt of certified copy of this order hear the complainant again ignoring the direction of the Addl. Sessions Judge/Presiding Officer, Fast Track Court no.4, Aligarh  whereby he has  held that a prima facie case was made out against the accused persons and had directed him to summon the accused persons and he shall pass suitable orders after making reappraisal of the evidence produced  in support of the complaint himself without taking into consideration  aforesaid  directions of the Addl. Sessions Judge which have been set aside  in this judgment.

Dated:14.9.2006

RPP.


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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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