Lekhraj and Another vs State of U.P. and Another

Ravindra Singh, J.—This application has been moved by the applicants Lekhraj and Chhotey Lal with a prayer to quash the proceedings of Complaint Case No. 761 of 2007, under Sections 376, 452, 354, 323, 504 and 506, I.P.C. pending in the Court of Judicial Magistrate II, Budaun.

The facts, in brief, of this case are that the complaint of this case has been lodged by O. P. No. 2 Smt. Kalo Devi, thereafter her statement u/s 200, Cr. P.C. was recorded and the statements of P.W. 1 Ram Chandra, P.W. 2 Om Kali were recorded u/s 202, Cr. P.C. in which it was alleged that the applicant No. 1 Lekhraj came inside the house of O. P. No. 2 where she was sleeping, he took out a country made pistol, the same was put on the chest of O. P. No. 2 and she was asked not to speak anything otherwise she and her daughter would be killed, thereafter he committed rape with O. P. No. 2. Considering the same, the learned Judicial Magistrate I Ind, Budaun has summoned the applicant Lekhraj to face the trial for the offences punishable under Sections 376, 452, 323, 504 and 506, I.P.C. and Chhotey Lal for the offences punishable under Sections 452, 504 and 506, I.P.C. vide order dated 23.4.2008.

Being aggrieved from the order dated 23.4.2008, the present application has been filed by the applicants with a prayer to quash the same.

Heard Sri R. P.S . Chauhan, learned Counsel for the applicants and learned A.G.A. for the State of U. P.

It is contended by learned Counsel for the applicants that O. P. No. 2 moved an application u/s 156(3), Cr. P.C. in respect of the incident of the present case, the same was allowed on 12.10.2007 by learned Judicial Magistrate, Budaun, thereafter, the F.I.R. was lodged in Case Crime No. 548 of 2007 under Sections 376, 506 and 323, I.P.C., P.S. Binawar, district Budaun on 18.10.2007, the same was investigated by the Investigating Officer who forwarded the Final Report No. 18 of 2007 dated 12.12.2007 in the Court of learned Judicial Magistrate 2nd, Budaun, thereafter the report dated 31.1.2008 was submitted mentioning therein that further investigation of that case was being done by Prithvi Raj Singh Chauhan, but it is surprising that during pendency of the investigation, a complaint dated 23.10.2007 has been filed by O. P. No. 2 at the same time proceedings of investigation were going on and the Court was proceeding on the complaint filed by O. P. No. 2 but the learned Magistrate concerned has passed the order dated 17.1.2008 by which the report was called for from the police station concerned but the report has been submitted by police station concerned that F.R. dated 12.12.2007 has been submitted in the Court but the further investigation was being done by Sri Prithvi Raj Singh Chauhan, thereafter, the Court has directed to submit further report vide 31.1.2008. But without waiting the report from the police station concerned, the learned Magistrate concerned has taken the cognizance and summoned the applicants to face the trial vide order dated 23.4.2008, which is illegal.

In reply of the above contention, it is submitted by learned A.G.A. that the learned Magistrate concerned has itself passed proper order calling for the report from the police station concerned for the purpose of consolidating both the cases in exercise of power conferred u/s 210(2), Cr. P.C., therefore, the learned Magistrate concerned has not committed any error for proceeding further in taking cognizance and summoning the applicants on the basis of the complaint and statements recorded under Sections 200 and 202, Cr. P.C., vide order dated 23.4.2008. There is no illegality in the prosecution of the applicants, therefore, the prayer for quashing the proceedings of the Complaint Case No. 761 of 2007 may not be quashed. The present application is devoid of merits, the same may be dismissed.

Considering the submission made by learned Counsel for the applicants, learned A.G.A. for the State of U. P. and from the perusal of the record, it appears that in the present case in respect of the same incident, F.I.R. has been lodged on 18.10.2007 in Case Crime No. 548 of 2007 under Sections 376, 506 and 323, I.P.C., police station Binawar district Budaun, during pendency of the investigation, the complaint dated 23.10.2007 has been filed by O. P. No. 2 in which the statements under Sections 200 and 202, Cr. P.C. have been recorded but before taking the cognizance, the investigation has been concluded by the Investigating Officer and F.R. No. 18 of 2007 dated 12.12.2007 has been filed, but it is also reported that further investigation is pending for which the learned Magistrate concerned has called for the report from the police station concerned. The police station concerned reported that the investigation has been concluded on 12.12.2007 vide F.R. No. 18 of 2007 but it is also reported that the further investigation is pending, subsequently according to the order sheet the result of the further investigation has not been reported by the police station concerned to the Court concerned, thereafter the learned Magistrate concerned has passed the impugned order dated 23.4.2008 by which the applicants have been summoned to face the trial. The learned Magistrate concerned has passed the perfect order for consolidating the proceedings arising out of the F.I.R. and the complaint filed by O. P. No. 2 under the provisions of Section 210, Cr. P.C. The learned Magistrate concerned has not committed any error in passing the order dated 23.4.2008 by which the applicants have been summoned to face the trial. There is no illegality in the impugned order dated 23.4.2008, there is no illegality in the prosecution of the applicant, therefore, the prayer for quashing the proceedings of the Complaint Case No. 761 of 2007 is refused.

However, it shall be open to the learned Magistrate concerned to pass appropriate order u/s 210, Cr. P.C. for consolidating the proceedings arising out of the F.I.R. and the complaint lodged by O. P. No. 2, if it requires.

It is further directed that in case the applicants have not appeared before the Court concerned in pursuance of the impugned order dated 23.4.2008, they shall appear before the Court concerned within 25 days from today. In case they apply for bail, the same shall be heard and disposed of expeditiously.

With above directions, this application is disposed of finally.