Allahabad High Court
Chhedi @ Nakchhed And Ors. vs The State Of U.P And Anr. on 15 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- APPLICATION U/S 482 No. - 4028 of 2011 Applicant :- Chhedi @ Nakchhed And Ors. Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Manoj Kumar Singh,Pawan Kumar Sharma Counsel for Opposite Party :- Govt. Advocate,Ashish Raman Mishra Hon'ble Brij Raj Singh,J.
(Crl. Misc. Application No.2 of 2022: Application for Condonation of Delay in Moving Application for Recall of Order dated 28.2.2020) Cause shown is sufficient. The application is allowed. Delay in filing application for recall of order dated 28.2.2020 is condoned.
(Application for Recall of Order dated 28.2.2020) Cause shown is sufficient. The application is allowed. Order dated 28.2.2020 is recalled. Application under Section 482 CrPC is restored to its original number.
(Order on Memo of Application) Heard learned counsel for the applicants, Sri Ashish Raman Mishra learned counsel for the O.P. No.2, learned AGA for State and perused record.
Learned counsel for applicants has informed that the applicant No.1 Chhedi alias Nekchhed has died on 3.8.2019. Therefore, the instant application in respect of applicant No.1 Chhedi alias Nekchhed may be dismissed as abated.
In view of aforesaid facts, since the applicant No.1 Chhedi alias Nekchhed has died, therefore, the instant application stands dismissed as abated in respect of applicant No.1 Chhedi alias Nekchhed and the same is being heard and decided in respect of applicant No.2 to 9.
This application under Section 482 CrPC has been filed by the applicants with prayer to quash the summoning order dated 17.6.2011 passed by the Additional Civil Judge (Senior Division), Room No.8/Judicial Magistrate, Bahraich in Complaint Case No.661 of 2010 (Smt. Prem Lali. Vs. Chhede Lal and others) and also quash the entire proceedings of the said complaint case.
Brief facts of the case are that on 19.6.2009, an FIR was lodged by the O.P. No.2 in which 11 persons were named in case crime No.421 of 2009 under Section 323, 395, 436 IPC, at PS Visheshwarganj, district Bahraich. The investigation was done by the Investigating officer and chargesheet was filed only against two persons namely, Chhedi alias Nekchhed and Kusuma Devi on 15.7.2009. In the said chargesheet, cognizance has already been taken by the Court below.
The record further reveals that the O.P. No.2 instituted a criminal complaint on 21.10.2010 in which applicants and Chhedi alias Nekchhed have been arrayed as opposite parties. The Magistrate after recording statement under Section 200 and 202 CrPC, summoned the applicants vide order dated 17.6.2011 which is under challenge.
Learned counsel for the applicants has submitted that once the final report has been filed in favour of the applicants, it is not open for the Court below to summon in the subsequent criminal complaint instituted by the O.P. No.2 for the same cause of action. He has further submitted that the tenor of the order becomes illegal in view of Section 210 (2) CrPC because Chhedi alias Nekchhed (died on 3.8.2019) was also arrayed as party in the criminal complaint instituted by the O.P. No.2 and when the impugned order was passed, the Court below did not follow the mandate of Section 210 (2) CrPC.
On the other hand, Sri Ashish Raman Mishra, learned counsel for the opposite parties has submitted that there is no requirement to follow the mandate of Section 210 (2) CrPC since the applicant No.1 Chhedi alias Nekchhed has already died on 3.8.2019, therefore, the Court below will have no occasion to take note of the fact that Chhedi alias Nekchhed was unnecessarily made party in the present criminal case. He has further submitted that there is no illegality and infirmity in the order passed by the Court below.
Learned AGA has also opposed and has submitted that the order passed by the Court below does not suffer from any illegality or infirmity.
Section 210 (2) CrPC provides that if a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report For convenience, Section 210 (2) CrPC reads as thus:-
"(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report."
A perusal of Section 210 (2) CrPC indicates that Magistrate while exercising his power, has to follow the mandate and the Magistrate shall inquire into or try together the complaint case in the case arising out of the police report as if both cases were instituted on a police report.
In the present case, it is worth to be mentioned that when the impugned order was passed on 17.6.2011, Chhedi alias Nekchhed against whom police report was filed and he was chargesheeted, the Court has not taken note of the fact and the order has been passed in violation of Section 210 (2) CrPC.
Considering the aforesaid facts and circumstances of the case and the submissions of the learned counsel for the parties, in my opinion, the order dated 17.6.2011 cannot sustain in the eyes of law.
The order dated 17.6.2011 is set aside and the matter is remanded to the Court below who will take a fresh decision in the case in accordance with law within a period of two months from today.
With the aforesaid directions, the application is disposed of.
Order Date :- 15.11.2022 Rajneesh JR-PS)