MANPHOOL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the order dated 25.8.2007 (Annexure P-5) passed by the Additional Sessions Judge, Ferozepur. Further prayer is for restoration of order dated 9.5.2003 (Annexure P-4) passed by the Judicial Magistrate, Ist Class, Abohar, whereby the application of dropping the proceeding in case FIR No.94 dated 12.6.1998 under Sections 435/ 427/ 506/ 34 of the Indian Penal Code (IPC for short) registered at Police Station Sadar Abohar, District Ferozepur was accepted.

(2.) Learned counsel for the petitioners has submitted that FIR in question was lodged by the complainant. During investigation of the case, complainant-respondent No.2 filed a private complaint against the petitioners and Sushil Kumar under Sections 435/ 427/ 506/ 34. The said complaint was dismissed by the Sub Divisional Judicial Magistrate, Abohar vide order dated 24.5.2000 and the said order was upheld by the Additional Sessions Judge, Ferozerpur vide order dated 19.2.2003. In the police case, cancellation report was submitted by the Investigating Officer. However, the Magistrate did not agree with the cancellation report and summoned the petitioners under Sections 435/ 427/ 506/ 34 IPC vide order dated 13.7.2001 and it was further ordered that the case be registered as police challan. Thereafter, the petitioners were discharged vide order dated 9.5.2003 by the Magistrate on an application moved by the petitioners. The said order was, however, set aside by the Additional Sessions Judge, Ferozepur vide order dated 25.8.2007. Although an application was moved by the petitioners under Section 245 Cr.P.C. but the same was liable to be treated under Section 239 Cr.P.C. as the present case was not a private complaint but it was a police challan. Hence, the petitioners could be discharged under Section 239 Cr.P.C.

(3.) Learned State counsel and learned counsel for respondent No.2, on the other hand, have submitted that the Magistrate had no power to review the summoning order in view of law laid down by the Apex Court in Adalat Prasad vs. Roop Lal Jindal, 2004 4 RCR(Cri) 1 After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be allowed.