HABIB Vs. STATE OF U P

JUDGEMENT

(1.) K. N. Ojha, J. This writ petition under Article 226 of the Constitution of India has been filed for quashing the orders dated 18-7-2000 and 24-9-2003 passed by Chief Judicial Magistrate, Jalaun at Orai, and order dated 15- 10-2003 passed by learned Sessions Judge, Jalaun at Orai, by which revision preferred against order dated 24-9-2003 passed by Chief Judicial Magistrate was dismissed and it was held that the Magistrate has no power to recall or vary the order summoning the accused to face the trial as such the objection of the accused is not maintainable. The petitioners accused had first to appear before the Chief Judicial Magistrate, they will have opportunity to argue on the charges in the Court of Sessions and the case is to be decided in accordance with the provisions of Cr. P. C. The petitioners-accused cannot be allowed to by pass the provisions of bail contemplated in the Criminal Procedure Code.

(2.) HEARD Sri B. N. Singh, learned Counsel for the petitioners and the learned AGA.

(3.) IT is submitted that merely an application was moved by the complainant that he had to adduce evidence. No protest petition was filed containing the details of occurrence. Therefore, the application moved by the applicant could not be treated to be complaint. Besides it under Section 202 Cr. P. C. when it is Sessions triable case and the Magistrate is proceeding to deal with the case as a complaint case, the statement of prosecution witnesses should be recorded and list of all witnesses should be filed in the Court. On the ground it was submitted that the order summoning the accused-petitioners deserves to be recalled. The learned Counsel for the petitioner has placed reliance on 2002 (2) JIC 563 (Allahabad), Bhagwan Singh and others v. State of U. P. and another, in which it has been held by a learned Single Bench of this Court that the accused can be summoned only after list of witnesses has been filed. Under Section 204 (2) Cr. P. C. protest petition cannot be treated as complaint, if details of commission of the offence is not mentioned. With this observation it was held that the learned trial Judge could have taken cognizance of the application under Section 156 (3) Cr. P. C. and not on protest petition in which details of facts have not been mentioned. Even though the impugned order summoning the accused was quashed but it was made clear that the trial Court was free to pass fresh order after removing these defects.