ANIL KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. C.L. Yadav, learned counsel for the petitioners as well as learned Additional Government Advocate and Mr. Vimal Mishra, learned counsel for opposite party No. 2. The petitioners have challenged the order dated 21.5.2008 passed by the Chief Judicial Magistrate in complaint case No. 254 of 2008 whereby complainant's complaint has been accepted and the petitioners have been summoned for trial under Sec. 420, 468, 471 I.P.C. merely on the ground that against the petitioners, an application under Sec. 340 Criminal Procedure Code has been filed before Sub-Divisional Magistrate, Faizabad whereby the allegations of fraud allegedly to have been committed by the petitioner have been made. The petitioners have filed objection. After hearing the parties, learned Sub-Divisional Magistrate rejected the application under Sec. 340 Criminal Procedure Code vide order dated 12.7.2007. Being aggrieved with which, appeal bearing No. 39 of 2007 under Sec. 341 Criminal Procedure Code has been preferred before the District and Sessions Judge, Faizabad, who remanded the case to the Sub-Divisional Magistrate by means of an order dated 11.3.2008 where the same is still pending. It has further been submitted by learned counsel for the petitioners that the petitioners moved an application for recall of the order before the Judicial magistrate on the ground that for the same cause of action, proceeding under Sec. 340 Criminal Procedure Code is pending against the petitioners before the Sub-Divisional Magistrate, Faizabad. However by concealing this fact, the opposite party No. 2 has filed the complaint, which has been rejected by learned Magistrate by means of an order dated 13.8.2008.

(2.) In view of the aforesaid facts, he submitted that no person can be prosecuted twice for one offence as for the same offence two proceedings are going on against the petitioners one under Sec. 340 Criminal Procedure Code before the Sub-Divisional Magistrate, Faizabad and another complaint before the Chief Judicial Magistrate, who has taken cognizance of offence under Sec. 190 (1) Criminal Procedure Code It is a case of filing a false and forged affidavit and bond before the court as upon the statement of complainants as well as the witnesses produced by him the Magistrate concerned has found that prima facie an offence is made out against the petitioner. Learned counsel for the petitioners submits that once the cognizance has been taken against the offence allegedly to have been committed by the petitioner under Sec. 340 Criminal Procedure Code of the court of competent jurisdiction, there is no occasion to entertain the complaint for the same cause of action. In support of his contentions, he cited a decision of the Honourable Supreme Court rendered in the case of M.S. Ahlawat Vs. State of Haryana and another, AIR 2000 SC 168 . The relevant paragraphs of which are reproduced hereinunder:-

(3.) The expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court" occurring in clause (b)(ii) of sub-section (1) of Sec. 195 Criminal Procedure Code attracted the attention of the Honourable Supreme Court for its interpretation, which has been interpreted by the Honourable Supreme Court in following manner: The relevant paragraphs of the judgment is reproduced hereinunder:-