ANAND VERMA Vs. STATE OF U P

JUDGEMENT

(1.) WE have heard learned counsel for the petitioner and learned A.G. A. By means of this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 28 -4 -2000 passed by the 1st A.C.J.M., Kanpur Dehat on the surrender application 'made before him by the petitioner in connection with the case crime No. 33 of 2000 under Section 394 IPC, P.S. Shivrajpur, district Kanpur Nagar. A further prayer has been made for issuing a writ of mandamus commanding the Investigating Officer to ignore the aforesaid order of the Magistrate while conducting investigation of the aforesaid case crime number.

(2.) SOME undisputed relevant facts are that on the basis of the F.I.R. a case under Section 394 IPC was registered and the police is investigating the same. On 2 -5 -2000 the Investigating Officer obtained non -bailable warrant of arrest and process under Section 82 Cr. P.C. against the petitioner. Since the offence punishable under Section 394 IPC is a scheduled of ­fence under the Dacoity Affected Area Act, the said process were obtained from the Court of Special Judge (Dacoity Af ­fected Area). The petitioner moved sur ­render application before the 1st ACJM, Kanpur Dehat whereupon a report was called for from the Station Officer of police station concerned who submitted his report on 10 -6 -2000 to the effect that against the petitioner only offences punishable under Sections 323, 325, 504 and 506 IPC have been made out during investigation of the F.I.R. registered under Section 394 IPC. Thereafter the learned Magistrate passed the impugned order.

(3.) IT is an undisputed fact that offence under Section 394 IPC is cognizable by the Special Judge (Dacoity Affected Area) being a scheduled offence under the said Act. Under the provisions of the said Act, the Special Judge has been vested with the powers of Magistrate. Therefore, in our opinion the surrender application made by the petitioner before 1st ACJM was not maintainable. Once a case was registered as a scheduled offence it is only the Court of Special Judge which could deal with the matters relating to such offence. There ­fore, any direction or observation con ­tained in the order of the learned Magistrate has no legal sanctity. As war ­rant of arrest and process under Section 82 Cr. P.C. had been issued by the Special Judge and were in operation, the Inves ­tigating Officer was bound to give effect to them and produce the petitioner before the concerned Court of Special Judge and the Investigating Officer himself had no power to overlook the said order of the learned Special Judge by treating the case to be under Sections 323,325,504 and 506 IPC only.