SAMAR BAHADUR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Anil Kumar Singh, learned counsel for the applicant and the learned A.G.A. for the State of U. P. and perused the record.

(2.) THIS application has been filed with a prayer to quash the order dated 17.6.2008, passed by the learned Additional Chief Judicial Magistrate-I, Jaunpur in Criminal Misc. Case No. 2069 of 2007 arising out of the charge-sheet submitted in case Crime No. Nil of 2007 (N.C.R. No. 1 of 2007) under Sections 436, 323, 504, 506 and 427, I.P.C. whereby the application filed by the applicant for not committing the case to the learned Sessions Judge, has been rejected and the order dated 4.8.2008, passed by the learned A.C.J.M.-I, Jaunpur by which Non-Bailable Warrants has been issued against the applicant.

(3.) IT is contended by the learned counsel for the applicant that the N.C.R. was lodged by applicant No. 2 in which there was no reference about the burning of the dwelling (madha) but subsequently, an application under Section 155 (2) of Cr.P.C. has been moved in which the allegation has been made that the applicant and others co-accused persons set the madha (Chhappar) on fire and it has also been mentioned therein that some house hold articles kept therein have also been burnt but during investigation the Investigating Officer recorded the statement of the witnesses who did not state that the burnt madha (Chhappar) was used for dwelling purpose or it was used for keeping some property as house hold articles even then the Investigating Officer has submitted the charge-sheet under Section 436, I.P.C., there is no evidence to show that any offence under Section 436, I.P.C. is made out, at the most an offence under Section 435, I.P.C. is made out, which is triable by the Magistrate, the learned Magistrate concerned has illegally rejected the objection filed by the applicant for not committing this case to the court of learned Sessions Judge, because no offence under Section 436, I.P.C. is made out. The impugned order dated 17.6.2008 is illegal, which is liable to be set aside.