DHIRENDRA SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. Dilip Pandey, learned Counsel for the petitioners as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate.

(2.) Learned Counsel for the petitioner further attacks the order on the ground that issuance of process to the petitioners is in violation of Sec. 204 (2), Cr. P.C. as till date the prosecution failed to provide the list of witnesses. On the strength of the aforesaid provision, he submits that since there is no evidence against the petitioners, the petition is liable to be allowed as the order passed by the learned Magistrate is illegal and unsustainable.

(3.) He further invited the attention of this Court towards the order impugned, in which it is pointed out that till date, the petitioners have not surrenders before the Court concerned, no stage of proceeding by the Magistrate for recording the statement of prosecution has reached before the Trial Court, therefore, without any evidence before the Court concerned, it is not reasonable for him to arrive at the conclusion that the petitioners are liable to be discharged from offence. After perusal of the aforesaid provisions, I find force in the submission of learned Additional Government Advocate. Therefore, without interfering into the merit of the order impugned, I hereby provide that if the petitioners surrender before the Court concerned alongwith application of bail, the same shall be considered in accordance with law and thereafter, the learned Magistrate shall proceed for evidence and at the stage, the learned Magistrate can call upon the witness of prosecution side and after evidence, may arrive at the conclusion as has been provided under Sec. 245, Cr. P.C., that the petitioners are liable to be discharged from offence. He can pass a fresh order.