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SHIV NARAIN JAISWAL AND OTHERS versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Shiv Narain Jaiswal And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. 11893 of 2004 [2006] RD-AH 17716 (13 October 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

Reserved:

Criminal Misc. Application No. 11893 of 2004

Shiv Narain Jaiswal and others Vs.  State of U.P. and another

Hon'ble  R.K.Rastogi,J

This is an application under section 482 Cr.P.C. for quashing  the proceedings  of criminal case no. 3025 of 2002, Abhay Pratap Singh Vs. Shiv Narain Jaiswal and others, pending before the  the Chief Judicial Magistrate, Azamgarh and the orders dated 23.9.2002 and 2.1.2003 passed  by the  Chief Judicial Magistrate, Azamgarh.

I have heard learned counsel for the applicants and learned A.G.A. for the State.

The  facts relevant for disposal of this  application are that Abhay Pratap Singh, (O.P.no. 2 in this case) moved an application  under section 156(3) Cr.P.C. against the accused applicants with these allegations  that he is an Advocate practising in civil court,  Azamgarh. He had purchased a piece of land bearing  plot no. 485 in Mauza  Kolwaz  Bahadur for construction of his house and  after getting his name mutated he  started construction of the house  in accordance with sanctioned map. Prem Narain and Shiv Narain etc.  ( applicants in the present case) had their land adjacent to the aforesaid land and  they  objected to these  constructions  hence, the plots of both the parties were  surveyed  and a report was submitted  to higher authorities  which made it clear that Shiv Narain etc. have no concern with the land  of Abhay Pratap Singh. The authorities were also satisfied  on seeing the  documents of Abhay Pratap Singh and Abhay Pratap Singh after  completing the construction of walls  on 10.9.2002 put roof on the walls, and on that date  at about 11 P.M. accused Prem Narain, Shiv Narain and two sons of Prem Narain along with their  3- 4 companions came to the newly constructed  house  of Abhay Pratap Singh. They were having  lathis, Dandas, Ballam, Gandasa, and country made pistol in their hands. Abhay  Pratap Singh was present at his  newly constructed house  along with Avnind Singh and Mundesh Singh. Prem Narain and  his  companions started abusing   them and challenged  Abhay Pratap Singh, Avnind Singh and Mundesh Singh, and  fired at them with an intent to kill them. The assailants  were identified  in the  light of torches. They demolished the roof of the house and  caused  loss to the complainant to the tune of Rs.30,000/-. They also took five  bags of cement, four Phawaras, two Belchas and three  Balties with them. Fires  were done  by the  accused persons from their   fire arms but the  complainant and his   companions some how escaped injuries. The complainant went to the police station  to lodge a report but his report was not written.  When the local police did not take any  action, Abhay Pratap approached the higher Police  authorities vide  his application dated  11.9.2002 which was  sent by Registered Post. Even then no  action was taken. Then he moved    this  application  under Section  156(3) Cr,P.C. for taking action   against the accused  persons who had  committed offences  under sections  504, 506, 147, 148, 149, 440, 307 and 379 I.P.C.

On the above application moved on 17.9.2002, the Magistrate passed an order on 23.9.2002 for its registration  as complaint and fixed  a date for recording  statement of the complainant under section 200 Cr.P.C.. After recording  statement of the complainant he also recorded the statements  of witnesses Awanind Singh and Mukesh Singh under section 202 Cr.P.C.  Then he passed an order on 2.1.2003  summoning the accused applicants under sections  147, 148, 149, 379, 354, 440, 504 and 506 I.P.C. Aggrieved with the orders dated 23.9.2002 and 2.1.2003  the accused  filed this application under section 482 Cr.P.C. for quashing these orders.

It  has been alleged  in this application that a civil suit was already pending  between the parties in respect of the disputed land  and a copy of  the plaint of O.S. no. 679 of 2001 filed in the court of Civil Judge (Junior Division ), Azamgarh  was produced as Annexure no.1 to the affidavit and a copy of injunction order issued by the  Civil Judge (Junior Division )in that suit directing both the parties to maintain status-quo was filed  as Annexure no.2. A copy of the written statement  of the defendants in that  suit  was  also filed as annexure no.3.It was alleged that since the application was filed under    section 156(3) Cr.P.C.,  the Magistrate could not  pass an order for registering  it as a complaint case and in support of this contention the learned counsel for the applicant has cited before me a ruling of Hon'ble K.N. Sinha,J. of this Court in 'Shyam Lal Jaiswal Vs. State of U.P' 2003 (46) ACC  1164 in which it has been held that in an application moved under section 153(3) Cr.P.C. Magistrate cannot  pass an order for registering it as complaint and such an order is  illegal. In reply to this contention, the learned counsel for O.P. no.2 cited before me a Full Bench ruling of this Court in 'Ram Babu  Gupta  Vs. State of U.P.and others ' 2001 (43) ACC 50. In this case it has been held that Magistrate has got jurisdiction to treat the application moved under section 156(3) Cr.P.C. as  complaint and the  different view taken by the Division bench of this Court  in the case of  'Suraj Mal Vs. State' 1993(30) ACC 81 does not  lay down  correct law.

I have carefully gone  through both these rulings. The Full Bench decision in the case of Ram Babu Gupta is based  upon the decision of Hon'ble Supreme Court  in the case of Suresh Chand Jain Vs. State of Madhya Pradesh and another' J.T. 2001 (2) SC 81. Their Lordships  of Full Bench have referred to various rulings  on the above point  in para 15 of the  judgment. It may be mentioned that  the  decision  in Suresh  Chand Jain's case  was pronounced by Hon'ble Supreme Court  when the judgment in Ram Babu Gupta's case  had  been  reserved. After delivery of the judgment of Hon'ble Apex Court in the aforesaid case  the Full bench  fixed a date for  re-hearing  of the matter in the light of  the above  judgment and  thereafter it decided this case on the basis of the above judgment in Suresh Chand Jain's case holding that in view of this pronouncement of the Hon'ble Supreme Court there was no necessity to deal with the  rulings referred to in para 15 of the judgment.

The view taken by Hon'ble Single Judge in Shyam Lal Jaiswal's case  is just opposite to the view taken by the  Full bench in the case of  Ram Babu Gupta and it appears that this Full Bench ruling  was not  cited before his  Lordship while deciding the above case. His Lordship has, however, relied upon the following three rulings  in his judgment in the case of Shyam Lal Jaiswal:

1. Madhu Bala Vs.Suresh Kumar and others 1997 (35) ACC   371 (S.C.);

2. Dinesh Chandra and others Vs. State of U.P. 2000(41) ACC 831  (Allahabad);

3. Mahboob Ali Vs. State of U.P. and others 2001 (Suppl) ACC 277 (Allahabad).

I have gone through all the aforesaid  three rulings  as well as  the  ruling of Hon'ble Apex Court in Suresh Chandra Jain's case referred to in the Full Bench ruling of this Court in Ram Babu Gupta's case  with a view to ascertain as to what is correct  legal position, I now proceed to discuss all these rulings:

First of all I take up  the judgement of Hon'ble Apex Court in the case of   Suresh Chand Jain Vs. State of  Madhya Pradesh & another :  JT 2001 (2) SC 81 . In this  case  facts were  that a complaint was  made before the Chief Judicial Magistrate , Neemuch  (M.P.) with the allegation  that the accused  had  committed  offence  punishable under section  420  I.P.C.   and   under section 3 of  the Prizes  , Chits  and Money Circulation Scheme ( Prohibition) Act . After  perusal of the complaint   the     Magistrate  was of the view that the  offence was of serious nature  and so it required to be investigated  by the police . He, therefore,  instead of  proceeding with the matter  as a complaint case , passed an order directing  the police under section 156(3) Cr. P. C.  to investigate the case. This  order  was challenged  by the accused  before the  learned Sessions Judge  by filing a revision  contending that  the  Magistrate  had no jurisdiction  to pass such an order on a complaint  filed before  him. This plea was rejected  by the  Sessions  Judge. Then he moved an  application before  High Court  under section 482 Cr.P.C. That application was also  dismissed.  Then he filed a criminal appeal before the Hon'ble  Apex Court  challenging the above order.  The Hon'ble Supreme Court  holding that  the order passed  by the  Magistrate was                                                                                                                                                                                                                                                              absolutely right made  following observations in para 10 of the judgement:

"The  position  is thus clear. Any  judicial  Magistrate , before taking cognizance  of the offence, can order investigation under Section 156 (3) of the  Code. If he does  so, he is  not to examine the complainant  on oath  because   he was  not taking cognizance  of any offence  therein.  For the  purpose of enabling  the police to start investigation it is  open to the Magistrate to direct the police  to  register an F.I.R. There is nothing illegal in doing so . After  all registration of an F.I.R. involves  only the process of  entering  the  substance  of the information  relating to the commission  of the cognizable  offence in a book  kept by  the officer in charge of the police station  as indicated in Section  154 of the Code. Even  if a Magistrate  does not say  in so many  words while directing investigation under  Section 156 (3) of the  Code  that an  F.I.R.  Should be registered , it is the  duty of  the officer-in- charge of the police station  to register  the F.I.R.  regarding the cognizable  offence disclosed by the complaint  because  that police officer could take further steps contemplated in  Chapter XII of  the  Code  only thereafter."

The  Hon'ble Apex Court   in the said judgement  relied upon  its earlier  decision  of three Judges Bench   in  Gopal  Das  Sindhi and others Vs.  State of Assam and  another ( AIR 1961 SC 986) and  two Judges  Bench  in Tula  Ram and  others Vs.  Kishore Singh  ( AIR 1977 SC 240). In Gopal Das  Sindhi (supra) the Hon'ble  Apex Court  had made the following observations:

" If the  Magistrate  had not taken cognizance  of the offence on the complaint  filed  before  him,  he was not obliged  to examine the complainant on oath  and the witnesses present at the time of  the filing of the complaint.  We can not read the provision for section 190 to mean that  once  a complaint is filed,  a Magistrate is bound to take cognizance if the facts stated  in the complaint  disclose  the commission of  any offence.  We are unable to construe the word ' may' in section 190 to mean  'must'. The reason is obvious. A complaint disclosing cognizable offences  may  well justify  a Magistrate  in sending  the complaint, under section 156(3) to the police  for investigation. There is no reason  why  the time of the Magistrate  should be wasted  when primarily  the duty to investigate the cases involving cognizable offences  is with the police. On the other hand,  there  may be occasions  when the Magistrate may  exercise his discretion and take cognizable of a cognizance offence."

The same position was reiterated by  Hon'ble Apex Court   in  Tula Ram  ( supra).

A decision of   Punjab & Haryana High Court  in Suresh  Kumar Vs. State of Haryana  [ 1996(3) Recent Criminal  Reports 137] was also  cited before  the Hon'ble Apex Court  in  which  a contrary  view  was taken  by  that Court. In regard to that ruling the Hon'ble  Apex Court  made the following observation in para 12 of its judgement:

".......... It is unfortunate   that  when  this Court   laid  down  the legal position  so explicitly  in the above  two decisions which reached the notice of the learned  Judge  of the Punjab and Haryana  High Court,  he had formulated  a position  contrary  to it  by stating  that " the Magistrate  has no  power within  the contemplation of section 156(3) of the Code, to ask for registration of the case." It appears  that the judicial officers under Punjab and Haryana  High Court who were,  till then,  following the correct position, were  asked by the learned  Judge to follow the erroneous  position formulated by him in the aforesaid judgement."

Now I take up    the  Full Bench  judgement of this  Court  in Ram Babu Gupta  and another Vs.  State of U.P. and others  [2001 (43) ACC 50] . In  this  Full  Bench   case  the following two  points were framed for consideration:

"1. Should  the Magistrate  while  exercising  powers under Section 156(3)  Cr.P.C. be  left to write  cryptic  orders  " register and investigate." or " register  and do the needful" or "  he has to investigate", or the like ? Or the Magistrate's  order should  prima facie  indicate application of mind;

2. Is the  observation of the Division Bench  in Suraj Mal ( supra) correct when it says  that when an applicant  before a Magistrate  prays  only for  registration and investigation of a case, such an application  will not become   "complaint" as  defined  in Section 2 of the  Cr.P.C.?"

This Hon'ble Full Bench  after referring to  the case law on the point and then relying upon  the aforesaid  ruling of  Hon'ble Apex Court in  Suresh  Chand Jain  (supra) ,  replied  point no.1 as under:

"16. Having thus noticed  the observations aforesaid  in Suresh Chand Jain,  it may  be desirable  to revert to the facts  in Suresh Chand Jain. The Magistrate  in that case  received  a complaint submitted  by the complainant  and expressed his opinion that from  the allegations therein, serious  offences were disclosed  and the  complaint was  required  to be investigated by the  police and thus forwarded  it to the  police  station  with the direction to register  the First  Information  Report and initiate  investigation  and called a copy of the FIR immediately on registration of the case.

17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby  held that  on receiving a complaint , the Magistrate   has to  apply his mind to the allegations in the  complaint upon which he may  not at once proceed to take cognizance  and  may order it  to go to the police station  for being  registered and investigated . The  Magistrate's  order must  indicate  application of mind. If the Magistrate takes cognizance ,  he proceeds to follow the  procedure  provided in Chapter XV of Cr.P.C. The  first question stands answered  thus."

Regarding point no.2 the  Full /Bench  made  the following  observations in para 18 and 19 of the judgement:

"18. Coming to the second  question  noted above it is to be  at once  stated  that a provision  empowering  a court  to act in a particular  manner and a provision  creating  a right  for an aggrieved person to  approach  a  Court or authority, must be understood   distinctively  and should not  be  mixed up. While  Sections 154,155 sub-section (1) and  (2) of 156, Cr.P.C.  confer  right  on  an aggrieved person to reach the police, 156(3) empowers a Magistrate to act in a particular manner in a given situation . Therefore, it is not  possible  to hold that where a bare  application  is moved before Court only  praying  for  exercise of powers under Section 156 (3) Cr.P.C., it will remain  an application only and  would  not be in  the nature of a complaint. It has been  noted above that the  Magistrate  has to always  apply his mind on the allegations in the  complaint where he may use his powers under Section 156 (3) Cr.P.C. In  this connection it may be  immediately  added that  where  in an application , a complainant  states  facts which constitute  cognizable  offence but makes a defective prayer, such  an application will not cease to be a complaint  nor can   the Magistrate refuse to treat  it as  complaint even though there be no prayer seeking trial of the known or  unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint . This Court can do no better than refer to  the following observations in Suresh  Chand Jain(supra):-

"The  position is thus clear. Any judicial Magistrate, before taking cognizance  of the offence, can order  investigation under Section 156(3) of the Code.... could take further  steps  contemplated in Chapter  XII of the Code only thereafter."

19. In view of the aforesaid  discussion, the observations in the two paragraphs noted above in   Suraj Mal (supra), cannot be  said to be  laying down  correct law,  therefore, those observations shall remain  confined to the decision in  Suraj Mal. The second  point formulated above stands  also answered thus."

It was thus also held in the above para 19 of the Full Bench  Judgement  that the Division Bench of this Court  in Suraj Mal  1993 (30) ACC 81 taking a contrary view  did not  lay  down the  correct law.

In view  of  the decision   of  Hon'ble Supreme Court   in  Sumer Chand Jain  ( supra ) and  the Full Bench decision of this  Court  in  Ram Babu  Gupta (supra ), the correct legal position  is that even in  a  complaint,  the  Magistrate  before taking  the  cognizance  under  Chapter XV of Cr.P.C. can pass an order for investigation  by police  under section 156(3) Cr.P.C.  if the allegations made in the  complaint disclose  a cognizable  offence. Similarly  on an application  under section  156(3) Cr.P.C.  the Magistrate  has got   a right  to treat  it as a complaint  and  to proceed with it under  Chapter  XV of the Cr.P.C..

The aforesaid ruling of  Hon'ble  Supreme Court  and the above  Full  Bench  ruling of this Court  do not appear  to have been cited  before Hon'ble K.N.Sinha ,J when   his  Lordship  was  deciding  the case  of  Shyam Lal  Jaiswal Vs,.  State of U.P.  [2003 (46) ACC 1164] in which  he has   taken a view  contrary to the law laid down  by Hon'ble Apex Court  and  by the Full Bench  of this Court.

Hon'ble  K.N.   Sinha ,J, has , however,  referred to   following  three decisions in support of his view that on an application moved under section 156(3) Cr.P.C. the Magistrate has  got no jurisdiction to pass an order  to treat it as a complaint.

1.Madhu Bala Vs.  Suresh  Kumar   1997(35) ACC 371 (SC)

2.Dinesh   Chandra  Vs.State of U.P. 2000 (41) ACC831

3.Mahboob Ali  Vs. State of U.P    2001 (Suppl.) ACC  277.

I have gone through all these rulings also and now I  proceed to discuss them  one by one.

First of all  I take up  the ruling in the case of  Madhu Bala (supra) . In this case  facts were that  a complaint  was lodged before the C.J.M. Kurukshetra  under section 498A and 406 I.P.C. and on that complaint the Magistrate  instead of  taking cognizance  under section 190 Cr.P.C. passed  order for investigation by the police  under section 156(3) Cr.P.C.  directing the police to register the case  and to investigate  the same. Thereafter the police  investigated the matter and submitted charge sheet  against the accused persons  under section 498A and 406 I.P.C.  The Magistrate took cognizance  against the accused persons  under section 406 I.P.C. only . He did not  take cognizance  under section 498A I.P.C. holding that  the offence  under section 498A I.P.C. was allegedly committed outside  his territorial jurisdiction  within the  district of  Karnal.  Thereafter  another  complaint was filed against  the accused persons  in the court of  C.J.M. Karnal under Section 498A I.P.C. and on this complaint  also the Magistrate passed order  for investigation  by the police under section 156(3) Cr.P.C.  The police accordingly registered  the case  and after investigation  submitted  charge sheet. Then cognizance was  taken by the Magistrate. Charges were  also framed  against the  accused persons. Thereafter  accused  persons filed  application under section  482  Cr.P.C. before  Punjab and Haryana  High Court  challenging  the orders of both  the  Chief Judicial Magistrate  of  Karnal and Kurukshetra . The High Court allowed the   application under section 482  Cr. P. C. holding that  the Magistrate  had no  power to  direct the  police  to  register the case . The order of   the High Court  was  challenged  before the  Hon'ble Apex Court . The Hon'ble Apex Court  allowed the appeal  holding that  the order  passed by the   Magistrates  were completely  legal  and justified.  It made the following observations in this judgement:

"From a combined  reading of the above  provisions , it is abundantly clear that when a  written complaint disclosing a cognizable offence is made before a  Magistrate, he may take  cognizance upon the same under Section 190(1)(a) of the Code and proceed with the same in accordance  with the  provisions of  Chapter XV. The other  option  available to the Magistrate  is such a case is to send the  complaint to the appropriate  Police Station  under Section 156(3)  for investigation. Once such a  direction is given under sub-section (3) of Section 156 the police is required to investigate  into that complaint under  sub-section (1) thereof and on completion of investigation to  submit a 'police report' in accordance with  Section 173(2) on which a Magistrate  may take  cognizance under Section 190(1)(b)- but not  under 190(1)a). Since  a complaint  filed before  a Magistrate cannot be a 'police  report' in view of the definition of 'complaint' referred to  earlier  and  since  the investigation of a 'cognizable  case' by the police under  Section 156 (1)  has to  culminate  in a ' police report' the 'complaint'- as soon as  an order  under Section 156(3 is  passed thereon- transforms itself to a report given in  writing within the meaning of Section  154 of the Code,  which is known  as the First  Information Report (F.I.R.)  As under  Section  156(1), the police can  only investigate  a cognizable 'case',  it has to formally  register a case  on that  report"

Thereafter referring to  certain provisions  of  the Police Act  and Rules   it further  observed as under:

"From  the foregoing  discussion it is evident  that whenever a Magistrate  directs an investigation on a 'complaint' the police has to  register a cognizable case on  that complaint treating the same as the F.I.R. and comply with the  requirements of  the  above Rules. It , therefore, passes our comprehension as to how the direction of a Magistrate  asking  the police  to 'register a case' makes an order of investigation under Section 156(3)  legally unsustainable. Indeed,  even if a Magistrate  does not  pass a  direction  to register a case, still in view of the provisions of Section 156(3) of the Code which empowers the Police to  investigate into a cognizable  'case'  and the Rules framed under the Indian Police Act, 1861 it ( the police) is duty  bound to formally register a case  and then  investigate into the same. The provisions of  the Code, therefore, does not in any way stand in the way of  a Magistrate  to direct the  police to register a case at the police station  and then  investigate  into the  same. In our opinion  when an order for investigation under Section 156(3)_ of the Code  is to be made the proper  direction  to the   Police  would  be  'to  register  a case at the police station  treating  the complaint as the First  Information Report and investigate  into the same."

With due deference to  his Lordship  deciding  Shyam Lal  Jaiswal's case  (supra),  it is pointed out that  the  above observations  of the Hon'ble  Apex Court  do not  support the  conclusion drawn by his Lordship  in the above ruling.

The second ruling  referred in the case of Shyam Lal is  of this Court  in the case   Dinesh Chandra (supra). I have  very carefully gone through  this  ruling also. In this judgement  no specific finding has been recorded  on the issue  and actually his Lordship(Hon'ble  S.K.Agarwal,J) has made a reference  to the Full  Bench   which was constituted in the case of Ram Babu (supra). This reference has also been considered  in the   Ram Babu's case. In this case also , the Magistrate  on a complaint before him  passed an order  directing registration of  the case   by the police  and this order was challenged  before this Court  and the matter was  referred to the above   Full  Bench.

While making the reference the following  observations were made by Hon'ble S. K.Agarwal,J  in  para 20 and 21 of its judgement:

"20. In  view of the  foregoing  discussions what  is  essential  for the exercise  of  the power  under Section  156(3) is that the  application must  disclose  the commission  of a cognizable  case and  the facts given  therein relate to  commission  of a cognizable  offence.  If that is  there the Magistrate  has to  order  investigation.

21.The Magistrate  even in the  case  of  a complaint, requesting him to take  action  against  the offender, may also  exercise  this  option. There is no bar to his  doing  this but  it can be  done at  a pre-cognizance  stage  and not after  cognizance  is taken by him."  

With due deference to  his Lordship  deciding  Shyam Lal  Jaiswal's case  (supra),  it is pointed  out that the  above observations of  Hon'ble S. K. Agarwal, J do not  support the  conclusion  drawn  by his Lordship in the above ruling. It may  also be added  that the  Full Bench  of this Court  in  Ram Babu (supra)  in  para 37 of its judgment upheld  the order passed by the  Magistrate  observing  that the order dated 2.7.1997 passed by the Magistrate was reasoned  one  and there were no  error in the order. It dismissed  Crl. Revision No. 1466/2000 filed before  this Court.

The last  ruling cited  by his Lordship in the case of Shyam Lal  Jaiswal is the ruling in the case of   Mahboob Ali  (supra) delivered by  Hon'ble U.S. Tripathi, J. In this case  his Lordship had observed that Magistrate has got no jurisdiction to treat an application under section 156(3) Cr.P.C. as complaint and such  an  order passed by the Magistrate  is without jurisdiction. It is, however, to be seen that this ruling was  delivered by his Lordship  on 21.12.2000 when the   aforesaid judgemnt of  Hon'ble Apex Court  in  Suresh Chand Jain  (supra)   and   of  Full Bench  in the case of  Ram Babu Gupta  (supra )  had not been  delivered . So this ruling of Hon'ble Single Judge  now can  not be treated to be  laying  down  the correct  law in view of  aforesaid rulings of  Hon'ble Apex Court   and Full Bench  of this Court.

The position  that emerges  out of  the discussion  attempted  above  is that,  taking into consideration  the above  rulings  of Hon'ble Apex Court  and  Full  Bench   of this Court, the Single Judge  ruling  in Shyam Lal   Jaiswal's case  laying down a contrary   view can not be  followed and  in view of  the above ruling  of   Hon'ble Supreme  Court and  the  Full Bench of  this Court , the order  passed  by  the learned Magistrate  is  completely valid . He had jurisdiction to pass  an order for registration of the case as a complaint  on  an application under section 156(3) Cr. P. C.  as laid down by  the above Full Bench  on the point  no. 2 in its judgement .

Learned counsel for the applicant  has also  pointed out that  there is no allegation of   the offence under section 354 I.P.C.  in the  application of the complainant  and the Learned Magistrate had  erroneously  passed an order summoning  the accused for  this offence. It was  conceded by  the Learned counsel for the  complainant   also that  there is no allegation  under section 354  I.P.C. against  the accused persons  and it appears that  the order  summoning the accused persons under section 354 I.P.C.  has been passed  under some  misapprehension . Hence the order passed by the  Magistrate  summoning  the accused under section 354 I.P.C. is liable to be set aside.  

The position in this way is that  the application  under section 482 Cr.P.C. deserves to be  partly allowed   to the extent  of  quashing  of  the  summoning order   under section  354 I.P.C. only. The rest of the summoning order  passed by the Magistrate  in respect of the remaining  offences is valid .

Accordingly, the application  under section 482 Cr. P. C.  is   partly allowed only to  the extent  it relates to quashing  of  the  summoning order under section  354 I.P.C. and the  summoning  order  to that  extent is  quashed. The remaining portion of  the summoning order  passed by the Magistrate  is valid  and is maintained. The accused are, however, allowed one month's time  to appear before the Magistrate and  during this period  the execution of  non bailable warrant against the accused applicant  shall remain stayed  so  as to enable  him to    appear   before the court concerned. The accused  applicant, after  putting  in  appearance  before the court,  may apply for bail  and   their  bail  application shall be  decided  by the Courts  expeditiously, if possible on the same day, taking into consideration  the directions of this Court  in the  case of Amrawati Devi  Vs. State of  U. P. [2004(ACJ) 1846].

With the above  observations the application  under section 482 Cr.P.C. stands  disposed of.

Dated:13.10.2006

RPP/MLK  


Copyright

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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