Harish Chand And Others vs State Of U.P. And Others
2011 Latest Caselaw 2868 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 48
 

 
Case :- CRIMINAL REVISION No. - 5492 of 2009
 

 
Petitioner :- Harish Chand And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Rajeev Chaddha
 
Respondent Counsel :- Govt. Advocate,Ashutosh Shukla
 

 
Hon'ble Rajesh Chandra,J.

    The revisionists have filed this revision against the order dated 30.06.2008 passed by the Judicial Magistrate-Ist, Gorakhpur summoning the revisionists for the offences under Sections 147, 323, 504, 506 and 395 I.P.C.

    In brief, the facts of the case are that Smt. Kalpana Rai was married with Sashi Chand Rai. Smt. Lalmani Rai, the mother of Sashi Chand Rai had moved an application under Section 156 (3) of the Code of Criminal Procedure in the court of Judicial Magistrate-Ist, Gorakhpur which, it appears, was registered as a complainant case. Thereafter, some evidence under Section 200 Cr.P.C. was recorded and the revisionists were summoned for the aforesaid offences.

    I have heard Shri Rajeev Chaddha, learned counsel for the revisionists, learned A.G.A. as well as Shri Ashutosh Shukla, learned counsel for the opposite party no.2.

    I have also perused the impugned order.

    The revisionists have filed a question-answer paper (Paper no.24 in the revision) from the lower court, in which it has been confirmed that in the said complaint case, no statement of any witness was recorded under Section 202 Cr.P.C.

    A perusal of the order of the lower court indicates that as per the Magistrate, he had gone through the statements recorded under Sections 200 and 202 Cr.P.C. as well as the other papers filed in support of the complaint. However, this order appears to have been passed without applying mind to the facts of the case. If the Magistrate had gone through the record of the case, he would have realised that no statement of any witness was recorded under Section 202 Cr.P.C.

    The mention of the fact in the impugned order that the Magistrate perused the statements recorded under Section 202 Cr.P.C., clearly indicates that the impugned order was passed without going through the record and the evidence recorded. It was passed in a routine matter.

    In these circumstances, it is apparent that the Magistrate has committed illegality in passing the impugned order, which has been passed without applying his mind.

    The revision is allowed and the impugned order dated 30.06.2008 is set aside.

    However, the Magistrate shall be at liberty to pass appropriate order after going through the record.

    The stay order, if any, is vacated.

    Office is directed to send certified copy of this order to the Chief Judicial Magistrate, concerned by registered post A.D.

Order Date :- 20.7.2011

AK