Arun Kumar and Others vs State of U.P. and Others

R.K. Rastogi, J.—The list has been revised. None is present for the applicant. Heard Ms. Vibha Srivastava, learned Counsel for the opposite party No. 4 and learned A.G.A., for the State and perused the record.

It appears that opposite party No. 4 had filed an application u/s 156(3), Cr. P.C. against the applicants before learned A.C.J.M.-V, Jaunpur. After hearing opposite party No. 4 that application was rejected by the learned A.C.J.M.

Aggrieved with that order, opposite party No. 4 filed Crl. Revision No. 517/99 before the Sessions Judge, Jaunpur which was transferred to Fast Track Court No. 1, Jaunpur for hearing and the learned Additional Sessions Judge, after hearing the revisionist and the Additional District Government Counsel for the State, allowed the revision and directed the Magistrate concerned to rehear Mr. Sheo Jor, opposite party No. 4 in the present case, and then decide the application u/s 156(3), Cr.P.C. in accordance with law.

Thereafter, the Magistrate treated the above application as a complaint and after recording the statement of the complainant u/s 200, Cr.P.C. and of his witnesses Ram Murat and Rama Shankar u/s 202, Cr.P.C., he was of the view that prima facie a case under Sections 147, 323, 352, 427, 504 and 506, I.P.C. was made out against the accused persons. He, therefore, summoned the accused for the above offences vide his order dated 28.5.2002 and since the accused did not appear, orders were passed on 11.8.03 for issuing non-bailable warrant against them.

Aggrieved with the order passed by the Additional Sessions Judge, Fast Track Court No. 1, Jaunpur, in Crl. Revision No. 517/99 and the summoning order dated 28.5.02 passed by the learned Magistrate as well as the order dated 11.8.03 for issuing non-bailable warrants against the accused persons, the accused-applicants have filed this application u/s 482, Cr. P.C.

As I have pointed out above, none appeared for the accused-applicants in spite of revision of the list. I heard arguments of the learned A.G.A. and Ms. Vibha Srivastava, learned Counsel for the complainant opposite party No. 4 and perused the record. It is to be seen that the learned Magistrate had the jurisdiction to treat the application u/s 156(3), Cr.P.C., as a complaint and after doing so he recorded the statement of the complainant u/s 200, Cr.P.C. and of his witnesses Ram Murat and Rama Shankar u/s 202, Cr.P.C. and on the basis of the complaint and the statements of the complainant and the aforesaid witnesses, a prima facie case under Sections 147, 323, 352, 427, 504 and 506, I.P.C. was made out against the accused persons and the learned Magistrate committed no illegality by summoning them. The pleas taken by the applicants are factual and they can be substantiated before the learned Magistrate at the proper stage.

A legal plea has also been taken in this application u/s 482, Cr.P.C. that the accused-applicants were not heard in the revision and the Additional Sessions Judge did not give an opportunity of hearing to them and so this application u/s 482 should be allowed and the order passed by the Additional Sessions Judge, should be set aside. However, it is to be seen that the application u/s 156(3), Cr.P.C. moved by opposite party No. 4 had been dismissed by the Magistrate ; and against that order, the Additional Sessions Judge had directed in the revision that the matter should be reheard and then suitable order should be passed. It is to be seen that there is no provision in the Section 156(3), Cr.P.C. for giving any opportunity of hearing to the accused at the pre-cognizance stage and so the applicant''s contention is misconceived.

Thus, this application u/s 482, Cr.P.C. has got no force and therefore, it is liable to be dismissed. It is accordingly dismissed. However, if the accused-applicants appear before the learned Magistrate within a period of one month from the date of this order and apply for bail, their bail applications shall be heard and decided by the court below expeditiously, if possible, on the same day and during this period of one month, issuance and execution of non-bailable warrants against them, shall remain stayed to enable them to appear before the Court concerned.