SHREE OM Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Shri Amit Daga, learned counsel for the applicant and Shri Pankaj Srivastava, learned A.G.A. for the State.

(2.) The instant application under Sec. 482 Cr.P.C. has been filed seeking quashing of the order dtd. 17/1/2020 passed by Chief Judicial Magistrate, Hathras in Criminal Case No. 470/12 of 2018 (now numbered as Criminal Case No. 453 of 2020) "State of U.P. Vs. Shree Om and others" arising out of Case Crime No. 1481 of 2017 under Sec. 147, 149, 307, 436, 120-B I.P.C. police station Sadabad, District Hathras.

(3.) The facts, in brief, of the instant case are that the applicant no. 1 and the opposite party no. 2 are the real brothers and the applicants no. 2 and 3 are the sons of applicant no. 1. There was property dispute between the applicant no. 1 and the opposite party no. 2 and various litigation with regard to property dispute between them are already pending. In the night intervening 16/17/12/2017, the fire took place in the shops owned by the opposite party no. 2 which were let out to somebody else. Taking the advantage of the said fire incident, the instant FIR has been registered by the opposite party no.2 against the applicants as well as other co-accused, namely, Dalveer Singh who is the Advocate of the applicants herein and pursuing their cases before the trial court. For the same incident another FIR was registered by the tenant of the shop on 18/12/2017 stating that fire has taken place in which they have suffered huge loss. During the investigation, the opposite party no. 2 and some of the witnesses have been produced and they have stated that they have seen the applicants running away after the fire took place in the shops. After due and proper investigation of the case a final report was filed by the investigating agency on 16/2/2018. On protest petition being filed by the opposite party no. 2 the said final report dtd. 16/2/2018 was rejected on 26/7/2018 and the C.J.M. Hathras directed for further investigation in the matter. The matter was again investigated and further final report dtd. 19/11/2018 was filed by the investigating agency. Thereupon again the protest petition was filed by the opposite party no. 2. Thereafter, considering the entire material in the final report, learned Magistrate vide order dtd. 17/1/2020 rejected the said final report. However, summoned the applicants herein as well as the co-accused Dalveer Singh for the offences under Sec. 147, 149, 307, 436, 120-B I.P.C. Against the said order dtd. 17/1/2020 one of the co-accused, namely, Dalveer Singh, who was the Advocate and representing the applicants in the trial court, filed a Revision No. 57 of 2021, which was disposed of by the Sessions Judge, Hathras vide order dtd. 11/10/2021 whereby the learned Sessions Judge remanded back the matter directing the revisionist to approach for discharge before the Magistrate, which shall be decided on merit. Against the said order, the opposite party no. 2 filed a petition under Article 227 No. 238 of 2022 which was disposed of vide order dtd. 25/1/2022 by this Court holding that since the offences under Sec. 147, 149, 307, 436, 120-B I.P.C. are triable by Sessions Court, therefore, the matter could not have been remanded back and the other co-accused could not have been directed to approach the C.J.M.for discharge, therefore, in the light of the aforesaid observation the order dtd. 11/10/2022 was set aside and the matter was remanded back to the Sessions Judge for fresh decision. Thereupon the learned Sessions Judge, Hathras vide order dtd. 6/7/2022 has allowed the said revision and set aside the order dtd. 17/1/2020 in respect of the cognizance taken against the revisionist, who is one of the co-accused in the instant case. Now the instant application has been filed by the applicants challenging the order dtd. 17/1/2020 passed by the learned Magistrate.