GANGA VISHAN KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petition has been preferred against order dated 08.09.2013 passed by Judicial Magistrate, Srimahaveer Ji, (Karauli) passed in Regular Criminal Case No. 194/2003, where by application under Sec. 311, Cr. P. C. preferred by Assistant Public Prosecutor has been allowed.

(2.) Relevant facts for disposal of this petition are that the petitioners were facing trial in Session's Case No. 53/2001 (37/98) before Additional Sessions Judge (Fast Tract) Hindaun for offence punishable under Sec. 302 IPC. During trial, they were in judicial custody, wherefrom they were taken on 10.01.1998 by police guards to the hospital for treatment. But from hospital both these petitioners fled away. As a result, FIR No. 39/98 for offences under Sections 224 and 223 Penal Code against the petitioners was registered at Police Station Hindaun City. After due investigation, charge-sheet was filed. After trial, learned Additional Chief Judicial Magistrate Hindaun City vide its judgment dated 21.01.2003 convicted and sentenced both of them for offence under section 224 IPC. On appeal, registered as Regular Criminal Appeal No. 3/2003, Additional Sessions Judge Hindaun vide judgment dated 25.02003 set aside the order of conviction and sentence passed against the petitioners and remitted back the matter to trial court with direction that this case be get transferred to some other court and the latter court would, while keeping in view the observations made in appeal, read over the accusation to the petitioners and rehear the matter as per law, and dispose it of. The learned Appellate Court in its judgment dated 25.02003 observed that in the instant matter the magistrate by whose order the petitioners were in judicial custody, on 10.01.1998, should have been examined and if the charge-sheet after investigation has been preferred in the court of same magistrate, then the case should have been get transferred to some other magistrate.

(3.) During rehearing of the case against petitioners for offences under Sec. 224 and 223 Penal Code which was registered as Regular Criminal Case No. 194/2003, Assistant Public Prosecutor submitted an application on 25.06.2012 to the effect that in view of observations made by the Appellate Court, warrant of judicial custody of petitioners whereby they were remanded to the judicial custody by the concerned magistrate, of the date of occurrence, be called from the case file of offence under Sec. 302 Penal Code and also prayed to find out the name of the magistrate by whose order the petitioners were sent to the judicial custody. This application was vehemently opposed by the petitioners. Despite, vide impugned order learned trial court, considering the observations made by the appellate court while remanding the matter, allowed the application.