Raja Ram Yadav and Others vs State of U.P. and Another

Hon''ble Arvind Kumar Tripathi, J.—Heard learned counsel for the applicants, learned A.G.A. and perused the record.

This application u/s 482 Cr.P.C. has been filed for quashing of the summoning order dated 7.11.2008 and pass an another order or direction which is proper in the fact and circumstances of the case.

Learned counsel for the applicant submitted that in fact no such incident took place. With the malafide intention the complaint was made u/s 156(3) Cr.P.C. However, the same was dismissed in default on 14.7.2008 since the complainant-opposite party no. 2 failed to appear before the court concerned. Thereafter neither the restoration application was moved nor separate complaint was made nor the order dismissing the application in default was recalled, hence the earlier application was not restored to its original number. However, learned A.C.J.M. First Basti has illegally and without jurisdiction not only called for the record but passed summoning order on 7.11.2008. He further submitted that in view of the provision of section 204 Cr.P.C. the complainant was required to submit the list of the witnesses. However, in the list of the witnesses the name of the accused persons were mentioned, hence on this ground also complaint was not maintainable, hence the summoning order as well as the entire proceeding is liable to be quashed.

Learned A.G.A. submitted that after three years he has filed this petition for quashing of the summoning order, hence on this ground the present petition is not maintainable. He further contended that whether the incident took place or not, it requires to be considered by the court below on the basis of the evidence adduced by the parties. When the proceedings was initiated it is deemed that the complainant was restored when on the application moved on behalf of the complainant, the order dated 16.7.2008 was passed for summoning record and thereafter summoning order was passed. Further this objection can be raised before the court below.

Considering the submission of the parties there is delay in filing the present application for quashing of the entire proceedings. However, according to counsel for the applicant, he has no information regarding the summoning order.

So for as the objection that without restoring the application which was dismissed in default the summoning order has been passed and there was no application supported with an affidavit either for recall of the earlier order and restoration of the application u/s 156(3) Cr.P.C. or filing of the complaint as well as objection that there is no compliance of the provision of section 204 Cr.P.C. are concerned, the objection can be raised before the court below where the proceeding is pending. At this initial stage since in view of the above, prima facie commission of the office is disclosed, I am not inclined to quash the proceeding because these objections are required to be considered on the basis of the evidence available on record and adduced by the parties.

However, in view of the fact and circumstances it is provided that if the applicants files objection and discharge application before the court below within three weeks from today it is expected that the same shall be considered and disposed of expeditiously as possible in accordance with law at the appropriate stage.

It is further provided that if the applicants appear before the court concerned within three weeks from today and apply for bail, it is expected that the same shall be considered and disposed off, if possible on the same day, in view of the guide lines by Full Bench decision of High Court in case of Amrawati and another vs. State of U.P. reported in 2004 (57) alr 390 and by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, .

For a period of three weeks, the non bailable warrant issued against the applicants shall remain stayed.

With the aforesaid observation this application filed u/s 482 Cr.P.C. is disposed off finally.