Court No. - 52 Case :- APPLICATION U/S 482 No. - 21072 of 2008 Petitioner :- Raj Kumar Rai Respondent :- State Of U.P. And Another Petitioner Counsel :- L.P. Singh Respondent Counsel :- Govt.Advocate Hon'ble Arvind Kumar Tripathi,J.
The present application under Section 482 Cr.P.C. has been filed
for quashing of the order dated 6.9.2007 passed on application
under Section 156(3)Cr.P.C directing for registration and
investigation of the case and the order dated 31.3.2008 passed by
Special Judge (D.A.A.) Jhansi and proceeding in Criminal Misc.
Case No. 644 of 2007,Dilip Kumar versus Raj Kumar arising out
of case crime No.1885 of 2007 under Sections 395, 323,504, 506
IPC, P.S. Kotwali, District Jhansi. In spite of service of notice, no
counter affidavit has been filed either on behalf of State or on
behalf of of opposite party No.2 informant/complainant. As per
office report notice was served upon the opposite party No.2 on
12.9.2008.
List revised.
Heard learned counsel for the applicant, learned A.G.A. and
perused the record.
Counsel for the applicant contended that in the present case on the
basis of false allegation regarding assault and threatening an
application under Section 156(3) Cr.P.C. was moved which was
rejcted. Thereafter application was filed before the High Court
which was allowed. After that matter was again considered by the
Special Judge (D.A.A.) Jhansi on 6.9.2008 and the direction was
issued for registration and investigation. After investigation since
no reliable material was available in support of the FIR hence final
report was submitted. On final report protest petition was filed by
the informant/opposite party No.2 alongwith affidavit of witnesses.
The allegation on behalf of the opposite party No.2 was that
investigating officer had not recorded the statement of the
witnesses according to law and submitted final report. Considering
the averments made in the protest petition and evidence of the
witnesses, the applicant was summoned under Sections 395, 323,
504, 506 IPC by the impugned order dated 31.3.2008.
Counsel for the applicant contended that if the opposite party No.2
was not satisfied by the investigation and submitted some
additional material then the Special Judge was required to proceed
as a complaint case or to direct for further investigation. However
the court below proceeded as State case and summoned the
applicant without recording statement of the witnesses as a
complaint case. Hence the summoning order and the entire
proceeding is liable to be quashed.
The aforesaid fact has not been controverted In view of the fact,
on perusal of the order itself, it is clear that the Special Judge
(Dacoity Affected Area) Jhansi summoned the applicant relying on
additional material placed alongwith the protest petition, hence the
impugned order is without jurisdiction. The impugned order dated
31.3.2008 is hereby set aside and the interim order dated 13.8.2008
is discharged. Accordingly the present application under Section
482 Cr.P.C is allowed. No order as to costs.
Order Date :- 12.7.2010
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