RAJU Vs. STATE

JUDGEMENT

(1.) This is a petition under Section 226 of the Constitution of India read with Section 482 Code of Criminal Procedure for quashing or the proceeding pending in the Court of Ms. Poonam Choudhary, M.M., New Delhi in the case FIR No.605/94, under Section 363/376/34 Indian Penal Code, P.S. Ambedkar Nagar.

(2.) Learned counsel for the petitioner argued that on 7.2.97, Sh. Sunil Gaur, ASJ, New Delhi, sent back the file of sessions trial to the court of Metropolitan Magistrate and passed the following order :

(3.) I have heard learned counsel for the petitioner, learned APP for the State and have been taken through the record. At the outset learned counsel for the petitioner argued that there is no provision in Code except Section 228 Code of Criminal Procedure for remanding back the case to the committal court, for the purpose of securing presence of co-accused, against whom there is same material on record. Learned APP for the State on the other hand argued that as per the material is on record, cognizance could validly be taken by Metropolitan Magistrate and even by ASJ, therefore; the petitioner be directed to appear before the court of sessions, so that the trial can proceed in accordance with law. In support of his submissions he placed reliance on State of M.P. Vs. Bhorji. 2001 (4) Crimes 190 and Rajinder Vs. Bashir. 2001, III AD, Crl. SC. 384. I have considered the rival contentions. Admittedly the petitioner was named in the FIR, although, the prosecutrix in her statement recorded under Section 164 Code of Criminal Procedure stated that petitioner did not committed rape upon her. After investigations, investigating agency found that the case under Section 363/342 Indian Penal Code is made out against the petitioner Raju. Learned Additional Sessions Judge ought to have either taken cognizance or could have sent reference to this court seeking direction to the M.M. for commital of the case to the Sessions's court. However, the case could not be sent back to the Committal court either for cognizance or for securing presence of the accused. There is no provision in Code of Criminal Procedure warranting such an order. In view of the same, impugned order dated 7.2.1997 is set aside. However, as noticed above, there is enough material against the petitioner to put him on trial along with the main accused. Therefore, the Metropolitan Magistrate is directed to commit the case for trial including petitioner-Raju. Petitioner is directed to appear before the court of Metropolitan Magistrate on the next date fixed.