BUNDU KHAN Vs. STATE OF U.P.

JUDGEMENT

(1.) THE applicants have moved this application under Section 482, Code of Criminal Procedure with a prayer that the order dated 26.6.2009, passed by the Judicial Magistrate, Hapur district Ghaziabad in Case No 80/08 as also the further proceedings of the said case may be quashed.

(2.) IN brief the facts of the case are that one Yusuf moved an application under Section 156(3), Code of Criminal Procedure in the Court of Judicial Magistrate, Hapur. The application was registered as a complaint and thereafter statement of the complainant was recorded under Section 200, Code of Criminal Procedure. The Court further recorded the statements of Imamuddin and Fakir under Section 202, Code of Criminal Procedure. The lower court after going through the oral and documentary evidence came to the conclusion that prima facie the offences under Sections 406, 504 and 506, I.P.C. are made out against the accused -applicants and thereafter summoned them for those offences vide order dated 4.12.2008.

(3.) I have also gone through the record. A perusal of the impugned order makes it clear that the application under Section 245(2), Code of Criminal Procedure was moved by the accused -applicants through their Counsel without putting in their appearance in the Court. Since there is no averment in the application under Section 482, Code of Criminal Procedure that the personal attendance of the accused persons was dispensed with by the Magistrate under Section 205, Code of Criminal Procedure hence it was necessary for the accused -applicants to put in their appearance in the lower court, seek their bail and then move an application under Section 245(2), Code of Criminal Procedure As the accused -applicants did not appear in the lower court hence their application under Section 245(2), Code of Criminal Procedure was rightly rejected by the lower court and to that extent I do not find any illegality in the order passed by the lower court.