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2016 DIGILAW 1435 (ALL)

Azaz v. State of U. P.

2016-04-19

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri Akhil Kumar Shukla for the petitioner and Sri Mohd. Nadeem for the opposite party. 2. This petition has been filed for setting aside the order of Chief Judicial Magistrate dated 3.10.2015 and order of Sessions Judge dated 10.3.2016. By the impugned orders, the Chief Judicial Magistrate has rejected the final report and taken cognizance on the protest petition filed by the complainant and the revision filed by the petitioner has been dismissed. 3. The Chief Judicial Magistrate has recorded a finding that from the material on the case diary, there was sufficient evidence to proceed against the accused person and the final report submitted by the police was incorrect, accordingly, he summoned the accused person and the revision filed by the petitioner has been dismissed. 4. The counsel for the petitioner submits that FIR through an application u/s 156(3) CrPC has been lodged malafide as Dr. Ateek (brother of Akhtar, the complainant) was accused in Case Crime No. 2853/2011, P.S. Gurusahaiganj, district Kannauj u/s 307, 336, 302, 504, 506/34 IPC. The FIR lodged through application u/s 156(3) CrPC is malafide, accordingly, the police submitted a final report in it, but the Magistrate has illegally rejected the final report on the protest petition. 5. I have considered the arguments of counsel for the parties and examined the record. It appears that there is a cross case. The incident is therefore admitted. Which of the version is correct and which of the version is incorrect, has to be decided after trial of the case. At the stage of summoning, it cannot be said that the summoning order was passed without any basis. The impugned orders do not suffer from any illegality. 6. However, it is provided that in case the petitioner appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this court in the case of Amrawati and another vs. State of U.P reported in 2004( 57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322(SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 7. State of U.P. 7. For a period of 30 days from today or till the disposal of the application for bail whichever is earlier, no coercive action shall be taken against the petitioner. It is made clear that in case the petitioner does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid observation the petition is disposed of.