LEKHRAJ Vs. STATE OF U P

JUDGEMENT

(1.) THIS appli cation has been moved by the applicants Lekhraj and Chhotey Lal with a prayer to quash the proceedings of complaint case No. 761 of 2007, under sections 376, 452, 354, 323, 504, 506 I.P.C. pending in the Court of Judicial Magistrate II, Budaun.

(2.) THE facts, in brief, of this case are that the cornplaint of this case has been lodged by O.P. No. 2 Smt. Kalo Devi, thereafter her statement under section 200 Cr.P.C. was recorded and the statements of PW1 Ram Chandra, PW 2 Om Kali were recorded under section 202 Cr.P.C. in which it was alleged that the applicant No. 1 Lekhraj came inside the house of O.P. No. 2 where she was sleeping, he took out a country made pistol, the same was put on the chest of O.P. No. 2 and she was asked not to speak any thing otherwise she and her daughter would be killed, thereafter he committed rape with O.P. No. 2. Consider ing the same, the learned Judicial Magistrate IInd, Budaun has summoned the ap plicant Lekhraj to face the trial for the offences punishable under sections 376, 452, 323, 504 & 506 I.P.C. and Chhotey Lal for the offences punishable under section 452, 504, 506 I.P.C. vide order dated 23.4.2008.

(3.) IT is contended by learned Counsel for the applicants that O.P. No. 2 moved an application under section 156 (3) Cr.P.C. in respect of the incident of the present case, the same was allowed on 12.10.2007 by learned Judicial Magistrate, Budaun, there after, the FIR was lodged in case crime No. 548 of 2007 under sections 376, 506 and 323 I.P.C., P.S. Binawar, District Budaun on 18.10.2007, the same was investigated by the I.O. who forwarded the Final Report No. 18 of 2007 dated 12.12.2007 in the Court of learned Judicial Magistrate 2nd Budaun, thereafter the report dated 31.1.2008 was submitted mentioning therein that further investigation of that case was being done by Prithvi Raj Singh Chauhan, but it is surprising that during pendency of the investigation, a complaint dated 23.10.2007 has been filed by O.P. No. 2 at the same time proceedings of investi gation were going on and the Court was proceeding on the complaint filed by O.P. No. 2 but the learned Magistrate concerned has passed the order dated 17.1.2008 by which the report was called for from the police station concerned but the report has been submitted by police station concerned that FIR dated 12.12.2007 has been submit ted in the Court but the further investiga tion was being done by Sri Prithvi Raj Singh Chauhan, thereafter, the Court has directed to submit further report vide 31.1.2008. But without waiting the report from the police station concerned, the learned Magistrate concerned has taken the cognizance and summoned the applicants to face the trial vide order dated 23.4.2008, which is illegal.