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2007 DIGILAW 862 (ALL)

KAJAL PODDAR v. STATE OF U P

2007-04-05

POONAM SRIVASTAVA

body2007
POONAM SRIVASTAVA, J. Heard Sri Somesh Khare, learned Counsel for the petitioners, Sri Sushil Shukla Advocate for the respondent No. 2 who has filed counter-affidavit, and learned A. G. A. for the State. Supplementary affidavit has been filed on behalf of the petitioners. Counsel for the petitioners states that he does not propose to file rejoinder affidavit since legal question is to be decided. 2. As agreed between the parties, final arguments heard by the Counsels of the respective parties. 3. The facts giving rise to the dispute is that a First Information Report, at the instance of the respondent No. 2 was lodged at case crime No. 111 of 2005, under Sections 419, 420, 467, 468, 478 I. P. C. on 25-5- 2005 at Police Station Kotwali, Kanpur Nagar against the petitioners. The subject-matter of controversy relates to a property which originally belong to one Nanhoo Lal Agrawal, who expired on 12-2-2005. Late Nanhoo Lal Agarwal had two sons, Rajesh Agarwal and Rajendra Agarwal. The petitioner No. 1 Smt. Kajal was married to Rajesh Agarwal who died on 26-11-1996. Two children Km. Tapasya and Master Akash were born from the wedlock of the petitioner No. 1 and Rajesh Agarwal. It is submitted that late Nanhoo Lal Agarwal executed a Will in favour of two grand-children on 5-1-2005 and bequeathed entire property to minor children. After the death of Nanhoo Lal Agarwal, the beneficiaries of the Will of late Nanhool Lal Agarwal, filed an application under Section 276 of the Indian Succession Act through their mother Smt. Kajal Agarwal, petitioner No. 1. The other son of late Nanhoo Lal Agarwal, Rajendra Agarwal happens to be the brother-in-law of the petitioner No. 1 Smt. Kajal Agarwal, who is the first informant of the present case. Notice was served to Rajendra Agarwal who was also arrayed as a party in the succession case. Rajendra Agarwal subsequently applied for succession on 22-2-2005 and thereafter lodged a First Information Report on 29-5-2005 which was registered at case crime No. 222 of 2005, under Sections 419, 420, 457, 468, 471 I. P. C. A copy of the report is annexed as Annexure-1 to the writ petition. The allegation in the First Information Report is pertaining to the Will said to have been executed by late Nanhoo Lal Agarwal in favour of his grand-children. The allegation in the First Information Report is pertaining to the Will said to have been executed by late Nanhoo Lal Agarwal in favour of his grand-children. After completing the investigation, a charge-sheet was submitted in the Court of Chief Metropolitan Magistrate, Kanpur Nagar who took cognizance on 16-2-2006. During continuation of investigation, the petitioners preferred a writ petition for quashing of the First Information Report and stay of arrest of the accused petitioners. A Division Bench of this Court in Writ Petition No. 6024 of 2005 had stayed the arrest of the accused vide order dated 15-6-2005. An application for vacating the interim order dated 15-6-2005 was moved at the instance of the contesting respondent which was disposed of limiting the interim order till the submission of the police report. However, stay of arrest was continued during investigation. The petitioners also preferred Criminal Misc. Application No. 13040 of 2006, Smt. Kajal Poddar v. State of U. P. and Anr. , for quashing the charge-sheet. The application was dismissed with an observation that in the event the applicant surrenders within a period of three weeks from the date of receipt of certified copy of the order, her bail shall be considered and disposed of by the Courts concerned expeditiously, preferably on the same day in accordance with law. The proceedings before the Chief Metropolitan Magistrate, Kanpur Nagar proceeded vide case No. 31303 of 2006, State v. Kajal and Ors. The order impugned in the instant writ petition is dated 24-1-2007 passed by the Sessions Judge dismissing the criminal revision No. 228 of 2006 and also for quashing the order dated 20-9-2006 issuing non-bailable warrants to the petitioners by the Chief Metropolitan Magistrate, Kanpur Nagar. It transpires from the perusal of the impugned order that the complainant moved an application on 4-9- 2006 before the Chief Metropolitan Magistrate bringing to his notice that the Court of Additional Chief Metropolitan Magistrate, Kanpur Nagar is vacant and there is no presiding officer to preside over the Court at present. On the said application, at the behest of the complainant, the Chief Metropolitan Magistrate, Kanpur Nagar called for the file from the Additional Chief Metropolitan Magistrate and thereafter non-bailable warrant was issued directly on 20-9-2006. 4. On the said application, at the behest of the complainant, the Chief Metropolitan Magistrate, Kanpur Nagar called for the file from the Additional Chief Metropolitan Magistrate and thereafter non-bailable warrant was issued directly on 20-9-2006. 4. Sri Somesh Khare has emphasized that since on the previous occasion the Court was vacant, the summons could not be issued and after file was called for from the Court of Additional Chief Metropolitan Magistrate which was received on 7-9-2006 straight away non-bailable warrants were issued on the next date fixed i. e. 20-9-2006. The entire order sheet has been brought on record in support of the contention that the Additional Chief Metropolitan Magistrate, Kanpur Nagar took cognizance on 16-6- 2006 thereafter on three dates i. e. 10-7-2006, 11-8-2006 and 31-8-2006 the Court was vacant. On 6-9-2006 the record of the case was sent to the Chief Metropolitan Magistrate which was received on 7-9-2006. The Chief Metropolitan Magistrate directed that the record be put up on the next date fixed which was 20-9- 2006 and the transferee Court on the first date itself issued non-bailable warrant which was challenged in Criminal Revision No. 228 of 2006. Learned Counsel for the petitioners has argued that the Chief Metropolitan Magistrate could not have transferred the case from the Court of Additional Chief Metropolitan Magistrate to his own Court without any reason. Emphasis is on Section 412 Cr. P. C. which is quoted below : "reasons to be recorded.- A Sessions Judge or Magistrate making an order under Section 408, Section 409, Section 410 or Section 411 shall record his reasons for making it. " 5. It is further argued that the Magistrate can transfer the case from one Court to the other only under Sections 410 and 411 Cr. P. C. but this power could be exercised only in accordance with Section 412 Cr. P. C. in as much as reasons should have been recorded. In support of this contention, learned Counsel has placed the application moved at the instance of the respondent No. 2 which is Annexure-2 to the supplementary affidavit. The application was moved on 4-9-2006. An endorsement by Chief Metropolitan Magistrate was made on the application itself which was : "register Recalled. Sd/- CMm Copy for ACMMi for 4-9-2006. " 6. In support of this contention, learned Counsel has placed the application moved at the instance of the respondent No. 2 which is Annexure-2 to the supplementary affidavit. The application was moved on 4-9-2006. An endorsement by Chief Metropolitan Magistrate was made on the application itself which was : "register Recalled. Sd/- CMm Copy for ACMMi for 4-9-2006. " 6. This order does not give any reasons and, therefore, Chief Metropolitan Magistrate was not competent to pass any order in the case since it could not be transferred in the manner, it was done at the instance of the contesting respondent and therefore, the learned Counsel states that the subsequent order issuing non-bailable warrant is also without jurisdiction. Learned Counsel has also placed Sections 18 and 19 Cr. P. C. and submits that the Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge and every other Metropolitan Magistrate subject to the general control of the Sessions Judge be subordinate to the Chief Metropolitan Magistrate. 7. Sri Sushil Shukla appearing for the contesting respondent has disputed the arguments of Sri Somesh Khare and has tried to demonstrate that the petitioners have not surrendered before the Court till date and is adopting all kind of dilatory tactics to delay the proceedings. It is contended that the accused have continuously filed revisions and transfer applications and thereby misused the process of law. 8. I have perused the counter-affidavit. One criminal revision was preferred challenging the order dated 5-9-2006 passed by Chief Metropolitan Magistrate calling for the record and transferring the case from the Court of Additional Chief Metropolitan Magistrate 1st, this revision was filed alongwith application for condonation of delay which was pending and during pendency of the said revision, non-bailable warrants were issued on 20-9-2006. The criminal revision No. 228 of 2006 was preferred challenging the order dated 20-9-2006 issuing non-bailable warrant as well as the order calling for the record by the Chief Metropolitan Magistrate from the Court of Additional Chief Metroplitan Magistrate 1st, Kanpur Nagar. The revision was dismissed on the ground of limitation. It is also submitted that two transfer applications at the instance of the petitioners have been dismissed, one account of the reason that the transfer application was not signed and second was dismissed in limine. The third transfer application preferred on 20-3-2007 under Section 408 Cr. P. C. is pending. The revision was dismissed on the ground of limitation. It is also submitted that two transfer applications at the instance of the petitioners have been dismissed, one account of the reason that the transfer application was not signed and second was dismissed in limine. The third transfer application preferred on 20-3-2007 under Section 408 Cr. P. C. is pending. In the circumstances, I do not think that the objection of the Counsel for the respondent carries much weight since the petitioner has preferred two revisions, one was beyond time and judgment given in the second revision is the one impugned in the instant writ petition. The objection of Sri Somesh Khare so for it relates to non-compliance of Section 412 Cr. P. C. , I am in agreement that the Chief Metropolitan Magistrate was liable to record reasons before the record was called from the Court of Additional Chief Metropolitan Magistrate 1st, Kanpur Nagar. He has failed to give any reasons whatsoever before transferring the case from Additional Chief Metropolitan Magistrate I, Kanpur Nagar. It is evident that the Chief Metropolitan Magistrate exercised his jurisdiction under Section 410 Cr. P. C. but he has failed to abide by the mandatory requirement of law to assign reason. The submission of Sri Somesh Khare appears to be correct. There is no separate order but an endorsement on the application itself. The order is not speaking one and does not fulfill the requirement of law and cannot be said to be in accordance with Section 412 Cr. P. C. Learned Counsel for the petitioners has also tried to emphasize that the warrants can be issued in lieu of or in addition to summons. Section 87 (b) Cr. P. C. provides that if it appears that the summons are duly served in time and inspite of it no reasonable excuse is offered for non-appearance for such failure, the Court is fully empowered to issue warrant of arrest. The legal preposition so far in Section 87 Cr. P. C. is not disputed but the objection to the effect that since the Court was vacant, no summons could have been issued and, therefore, issuance of non-bailable warrant is not in accordance with law, is not acceptable. The legal preposition so far in Section 87 Cr. P. C. is not disputed but the objection to the effect that since the Court was vacant, no summons could have been issued and, therefore, issuance of non-bailable warrant is not in accordance with law, is not acceptable. No doubt perusal of the order sheet goes to show that the Court was vacant on three dates after cognizance was taken but it cannot be said that the petitioners were not aware about the summons having been issued on the first date when cognizance was taken, therefore, the failure on the part of the petitioners cannot be taken lightly and condoned on technical objections. The petitioners invoked inherent jurisdiction of the Code and challenged the charge-sheet as well as cognizance by the Magistrate in the application under Section 482 Cr. P. C. permitting the petitioners to surrender before the Court below within stipulated period of time was well within their knowledge. The application was filed by the accused themselves and therefore, I am not in agreement with the submission of the learned Counsel that no summons were served and there was no report about service of summons and issuance of non-bailable warrant is rendered illegal. So far this objection by the learned Counsel for the petitioners in respect of service of summons is concerned, it does not merit consideration and has no force. 9. In view of various orders passed by this Court in writ petition and application under Section 482 Cr. P. C. , I set aside the order dated 4/5-9-2006 and direct that the petitioners will appear before the Additional Chief Metropolitan Magistrate 1st, Kanpur Nagar within a period of ten days from the date of issuance of certified copy of this order and apply for bail which shall be considered and disposed of in accordance with law by the Courts below expeditiously, preferably on the same day. In the event, the Court of Additional Chief Metropolitan Magistrate 1st, Kanpur Nagar is vacant then the record of the case shall be placed before the learned Sessions Judge, Kanpur Nagar who will ensure that the case is sent to a Court of competent jurisdiction which is not vacant. 10. With the aforesaid observations, this writ petition is finally disposed of. Petition disposed of. .