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2018 DIGILAW 492 (ALL)

Jangaljeet v. State of U. P.

2018-02-22

OM PRAKASH VII

body2018
JUDGMENT : OM PRAKASH-VII, J. 1. Despite service of notice the opposite party no. 2 is not present nor any counter affidavit is on record. 2. At this juncture, on the request of the learned counsel appearing for the applicants as well as learned A.G.A. appearing for the State matter is decided on merits. 3. The present application u/s 482 Cr.P.C. has been filed with the prayer to quash the order dated 18.9.2015 passed by Additional Sessions Judge, Court No. 5, Ghazipur in Criminal Revision No. 31 of 2014 as well as order dated 5.1.2016 in complaint case no. 2982 of 2015 under Sections 323, 452, 504, 506 IPC, Police Station Mardah, District Ghazipur. Further prayer has been made to stay further proceedings of the aforesaid case. 4. Learned counsel for the applicants submits that for the same set of fact one complaint in the form of Application U/S 156 (3) Cr.P.C. had been filed by one Sheodhar who is said to be injured. Court below dismissed the complaint under Section 203 Cr.P.C. on merits finding no prima facie case. Thereafter opposite party no. 2 with malafide intention filed the present complaint on the same set of facts against the applicants suppressing the rejection of first complaint under Section 203 Cr.P.C. Since one complaint had already been dismissed on merits, second complaint for the same set of facts was barred. Thus by entertaining the complaint and passing summoning order vide order dated 5.1.2016 the courts below have committed illegality. Revisional court also did not consider the true effect of the order passed on the first complaint under Section 203 Cr.P.C. and illegally observed that provision of Section 300 Cr.P.C. would not create any bar in entertaining the second complaint and passing the summoning order. Referring to the judgment and order passed by the revisional court learned counsel appearing for the applicant also argued that proceedings of the aforesaid complaint is barred for the reasons mentioned above and is abuse of process of law as the summoning order is illegal. 5. Learned A.G.A. opposed the prayer. 6. Referring to the judgment and order passed by the revisional court learned counsel appearing for the applicant also argued that proceedings of the aforesaid complaint is barred for the reasons mentioned above and is abuse of process of law as the summoning order is illegal. 5. Learned A.G.A. opposed the prayer. 6. In this matter as is evident from the record, first complaint was filed on 18.11.2011 by one Sheodhar, who is said to be injured in this matter, in the form of Application under Section 156 (3) Cr.P.C. It was treated as complaint and after recording statement of the complainant as well as two witnesses Sumer and Mahendra, the court below dismissed the complaint under Section 203 Cr.P.C. on merits on 25.8.2012. Present complaint was filed on 8.3.2013 by the opposite party no. 2 for the same set of facts. Injured is the same person who was the complainant in the first complaint. In this complaint complainant examined herself along with two other witnesses Manohar and Anita Devi. Court below summoned the applicant to face the trial by order dated 5.1.2016. Revision was filed by the present applicants which was also dismissed. If the submissions raised by the learned counsel for the applicants are compared with the observation recorded by the revisional court in Criminal Revision No. 31 of 2014 (annexure no. 10). It is evident that observation recorded by the revisional court is not in accordance with law. Once the complaint filed for the same set of facts has been dismissed on merits under Section 203 Cr.P.C. second complaint for the same set of facts ought not to have been entertained nor any summoning order could be passed especially when the first order passed under Section 203 Cr.P.C. in the first complaint was never challenged and attained finality. 7. Keeping in view this settled legal position, order passed by the concerned Magistrate on 5.1.2016 in the second complaint by which the present applicants have been summoned to face the trail as well as the order passed by the lower revisional court vide order dated 18.9.2015 both are illegal and are not sustainable. Application having substance is liable to be allowed. 8. The application is allowed and the order dated 18.9.2015 passed by Additional Sessions Judge, Court No. 5, Ghazipur in Criminal Revision No. 31 of 2014 as well as order dated 5.1.2016 passed in complaint case no. Application having substance is liable to be allowed. 8. The application is allowed and the order dated 18.9.2015 passed by Additional Sessions Judge, Court No. 5, Ghazipur in Criminal Revision No. 31 of 2014 as well as order dated 5.1.2016 passed in complaint case no. 2982 of 2015 under Sections 323, 452, 504, 506 IPC, Police Station Mardah, District Ghazipur are set aside and entire proceeding of the aforesaid complaint case are hereby quashed.