S K SINGH Vs. STATE OF U P

JUDGEMENT

(1.) SHIV Charan, J. Heard learned Counsel for the revisionist and perused the record. The instant revision has been instituted after being aggrieved from the judgment dated 11. 2. 2008 passed bya. S. J. Court No. 12, Bulandshahar in criminal revision No. 250 of 2004 (Hoti Lal v. State of U. P.)

(2.) THE narration of the chequered history of this case is essential. THE pe rusal of the file shows that Hoti Lal instituted a criminal Case No. 7485 of 2004 (Hoti Lal v. S. K. Singh) under Section 420, I. P. C. , PS. Kotwali Dehat, district Bulandshahar. THE learned Magistrate vide order dated 29, 6. 2004 dismissed the complaint under Section 203, Cr. P. C. And against the order dated 29. 6. 2004 of A. C. J. IVI. Bulandshahar criminal revision No. 250of2004 (Hoff/. a/v. State)was instituted. And the revision was allowed by the A. S. J. Court No. 12, Bulandshahar vide order dated 11. 2. 2008. And by this judgment and order the revision was allowed and the order of the A. C. J. IVI. dated 29. 6. 2004 was set aside and the trial Court was directed to pass afresh order of summoning of the accused in the light of the observation made in the body of the judgment. THE present revisionist filed writ petition No. 272 of 2006 (Annexure-8) copy of the order. And this petition was finally disposed of with the direction to the Court concerned to provide an oppor tunity of hearing to the petitioner, as provided under Section 398, Cr. P. C. and pass a fresh and proper order in accordance with law within a period of two months. And in pursuance of the direction of this Court the revisional Court passed the judgment and order dated 11. 2. 2008 after affording an opportunity of hearing to the revisionist. And now this revision has also been instituted after being ag grieved from the judgment of the revisional Court.

(3.) IN the present case the proviso of Section 398, Cr. P. C. is material and it is material to be seen whether this proviso is applicable in the case when a com plaint was dismissed under Section 203 or sub-section (4) of Section 204. IN the present case there was no case of dismissal of the complaint under sub-section (4) of Section 204 for want of steps. The learned Magistrate dismissed the com plaint under Section 203, Cr. P. C. And it has also been provided in Se'ction 398, Cr. P. C. that when any person accused of an offence who has been discharged. Hence the case of such a person is also covered under Section 398, Cr. P. C. who has been discharged by the Magistrate. And it is material whether the proviso of Section 398 Cr. P. C. is applicable in all the matters mentioned in Section 398 i. e. 203 sub-section (4) or only in the case of any person accused of an offence who has been discharged. It will be material to make it clear that at the time of pass ing Drder under Section 203 the accused is not expected to participate in the proceeding. The order is to be passed under this provision by the Magistrate after considering the evidence of the complainant And prior to passing the order of summoning the accused has no say. But where the accused is who was dis charged of an offence then it means that he had already been summoned but on the application of the accused or due to any other reason he has been discharged. And the proviso provides that what is to be done if an order is to be passed in a case in which the accused persons were discharged.