ARSHAD Vs. STATE OF U P

JUDGEMENT

(1.) AMAR Saran, J. Heard learned Counsel for the applicant and learned AGA. An order dated 27. 11. 2007 passed by the Judicial Magistrate, Garhmukteshwar, Ghaziabad, in Case No. 451 of 2007, summoning the applicants to face trial under Sections 302/364/201/120b, IPC, PS Babugarh, District Ghaziabad, has been challenged by means of this application.

(2.) IT has been observed in the impugned order that although the FIR based on the informant Smt. Jaitoon @ Laila's 156 (3), Cr. P. C. application under Section 364 IPC dated 21. 2. 2007 mentioned that the applicants had taken away her son Gaffar on 15. 8. 06 from her house in a Maruti car and since then her son was not traceable, the police did not charge-sheeted the applicants, but only charge-sheeted Ishtakhar and Mansar.

(3.) IT is argued by the learned Counsel for the applicants that as the charge-sheet had only been submitted by the police on 21. 10. 2007 against the co-accused Ishtikhar and Mansar, the learned Magistrate was not justified in summoning the applicants by the impugned order and the applicants could only been summoned when and if evidence was adduced in the Court under Section 319, Cr. P. C. He has placed reliance for this contention on the decision of the Apex Court in Ranjit Singh v. State of Punjab, 1998 SCC (Cri) 1554 and later in Kishori Singh and others M. State of Biharand another, (2006) 1 SCC (Cri) 275, which was based on the former case. A contrary view to the decision of the three-Judge Bench in Ranjit Singh's and Kishori Singh's cases (supra) has been taken by the two-judge decisions of the Apex Court in the cases of Kishun Singh v. State of Bihar, 1993 SCC (Cri) 470; SWIL Ltd. v. State of Delhi and another, 2001 SCC (Cri) 120, and Raghubans Dubey v. State of Bihar, (1967) 2 SCR423. However the view taken by the two Judge decisions in Kishun Singh and the other cases adopting that view has been preferred to the three Judge decision in Ranjit Singh's case by a subsequent three Judge bench, in Dharam Pal and others v. State of Haryana and another, (2006) 1 SCC (Cri) 273, and which has referred this matter to a larger Bench. Dharampal has categorically observed as follows in paragraph 3 : "3. Prima facie, we do not think that the interpretation reached in Ranjit Singh case is correct. In our view, the law was correctly enunciated in Kishun Singh case. Since the decision in Ranjit Singh case is of three-Judge Bench, we direct that the matter may be placed before the Hon'ble the Chief Justice for placing the same before a larger Bench. "