Lalu Yadav And Others vs State Of U.P. And Another
2011 Latest Caselaw 3713 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 50
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 15512 of 2011
 

 
Petitioner :- Lalu Yadav And Others
 
Respondent :- State Of U.P. And Another
 
Petitioner Counsel :- Rajiv Gupta,Ashok Kumar Yadav
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble S.C. Agarwal,J.

Heard learned counsel for the petitioners and learned AGA for the State.

This writ petition has been field with a prayer to quash the order dated 12.1.2011 passed by Chief Judicial Magistrate, Court No. 17, Deoria in Case No. 6234 of 2006, Rang Lal vs. Lalu Yadav & others and order dated 20.7.2011 passed by Addl. Sessions Judge, Court No. 7, Deoria in criminal revision no. 47 of 2011, P.S. Madanpur, District- Deoria.

The petitioners are accused in the aforesaid complaint case under section 147, 148, 327, 504, 506, 302 IPC and 3 (2) (5) SC/ST Act and application for discharge under Section 245 (2) Cr.P.C. was moved on behalf of the petitioners, which was dismissed by the Magistrate. The revision has also been dismissed.

Learned counsel for the petitioners submitted that the deceased died in an accident and no case under Section 302 IPC is made out.

Learned AGA submitted that the case is triable by court of sessions and the application for discharge under Section 245 Cr.P.C. was not maintainable and was rightly rejected.

The case is triable by the court of session and offence under section 3 (2) (5) SC/ST Act is also triable by Special Judge SC/ST Act. Section 245 (2) Cr.P.C. is applicable only to warrant cases instituted on the basis of complaint. The instant case is not triable by the Magistrate and, therefore, provisions of 245 (1) or 245 (2) Cr.P.C. are not applicable. The application u/s 245 (2) Cr.P.C. was misconceived and was rightly rejected by the Magistrate.

As far as criminal revision is concerned, learned Sessions Judge dismissed the revision on the ground that the application for discharge shall be considered by the Magistrate after recording evidence u/s 244 Cr.P.C. Learned Addl. Sessions Judge appears to be ignorant about the procedure relating to cases triable by court of session. Since the case was not triable by the Magistrate, there was no question of recording any evidence under Section 244 Cr.P.C. and, therefore, revision was dismissed on erroneous ground but the order of the revisional court does not call for any interference because the revision was itself not maintainable.

In view of aforesaid, no ground for interference is made out.

The writ petition is accordingly dismissed.

The petitioners shall be at liberty to move an application for discharge under Section 227 Cr.P.C. before the court of session at appropriate stage.

Order Date :- 11.8.2011

KU