SHYAM BAHADUR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) AMAR Saran, J. Heard learned Counsel for the applicants and the learned Counsel for opposite party No. 2 and the learned A. G. A.

(2.) THE facts of this case in short compass are that the opposite party No. 2 had filed a First Information Report under Section 498-A, 494, 506, IPC and 3/4 Dowry Prohibition Act, P. S. Hussainganj, Fatehpur, in which a charge-sheet was submitted and the trial was proceeding as Case No. 1045 of 2002. In that case the applicants had filed an affidavit before the Trial Court to the effect that Smt. Sanjoo Singh whom the applicant is said to have married without divorcing opposite party No. 2 Smt. Babita, is actually the wife of Vijay Bahadur Singh, younger brother of the applicant Shyam Bahadur Singh and not the wife of Shyam Bahadur Singh. THE opposite party No. 2 has filed a complaint case in the Court of Judicial Magistrate, Fatehpur, being Case No. 869 of 2004, Babita Singh v. Shyam Bahadur Singh and others, under Sections 193 and 120-B, IPC. After examining the witnesses under Sections 200 and 202 Cr. P. C. , the learned Judicial Magistrate, Fatehpur was pleased to summon the applicants by an order dated 10. 5. 2007.

(3.) LEARNED Counsel for the complainant submitted at this point that cognizance had been taken in the matter by the Judicial Magistrate, Fatehpur before whom case No. 105 of 2002 was pending, in which the applicants are said to have filed allegedly false affidavits. I may mention that the procedure prescribed under Section 340 of the Code of Criminal Procedure is that when upon an application made to the Court or otherwise, the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any of the offences mentioned in Section 195 (1) (b), Cr. PC. in respect of the proceedings pending in that Court, the said Court can after a preliminary inquiry record a finding to that effect; make a complaint thereof in writing and send it to a Magistrate of the first class having jurisdiction. Such a power can also be exercised by the superior Court, if the Court concerned has not passed the order directing inquiry. Clearly in the present case, the Court was not the complainant, but it had taken cognizance of the complaint on the basis of the application moved before it.