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2022 DIGILAW 462 (ALL)

Shiv Chand Awasthi v. State of U. P.

2022-03-30

KARUNESH SINGH PAWAR

body2022
JUDGMENT : Karunesh Singh Pawar, J. Heard learned counsel for the petitioners and learned A.G.A. for the State. 2. Notices to respondent No.2 is dispensed with. 3. By means of this petition, the petitioners have prayed for quashing the entire proceedings in Case No. 2962 of 2021 (State of U.P. v. Shiv Chandra Awasthi and others) pending in the Court of learned Civil Judge (Senior Division), F.T.C., District-Lakhimpur Kheri and also quash the order dated 16.12.2021 passed by learned Additional Chief Judicial Magistrate (F.T.C.) Lakhimpur. 4. Learned counsel for the petitioners submits that earlier he filed Petition under Section 482 bearing No. 4310 of 2021 which was disposed of vide judgment and order dated 2.11.2021. The relevant extract of the judgment is as under : ''Accordingly, without entering into the merits of the issue, the present petition is being disposed of at the admission stage with the direction that the petitioners may file a discharge application before the learned Court below through their counsel taking all pleas and grounds, which are available with them, enclosing therewith the relevant documents/evidence, which are necessary for disposal of the discharge application, within a period of three weeks from today and if such application is filed by the petitioners before the learned Court below within the aforesaid stipulated time, the Court concerned shall consider and decide the said application strictly in accordance with law, by passing speaking and reasoned order and by affording an opportunity of hearing to the concerning parties, with expedition, preferably within a period of four weeks thereafter. Till the disposal of such discharge application, the petitioners shall not be compelled to face the proceedings pending before the learned Court below relating to the aforesaid criminal case, but it is made clear that if the present petitioners do not file any discharge application within the aforesaid stipulated time, the benefit of this order shall not be extended to the petitioners. The petition is accordingly disposed of finally.'' 5. Learned counsel for the petitioners submits that a direction was issued vide order dated 2.11.2021 for the concerned Court to decide the discharge application. The petition is accordingly disposed of finally.'' 5. Learned counsel for the petitioners submits that a direction was issued vide order dated 2.11.2021 for the concerned Court to decide the discharge application. Since the charge-sheet in the case has been filed under Section 308 Indian Penal Code also alongwith other offences, therefore, learned Magistrate should have exempted the presence of the accused under Section 205 Cr.P.C. and after making compliance of the other provisions i.e. Section 207 Cr.P.C. as well as Section 209 Cr.P.C. should have forwarded the discharge application to the Sessions Court who in turn in compliance of judgment of this Court should have decided the discharge application on merit. On the contrary learned Magistrate has proceeded to decide the discharge application on technical grounds and has rejected it without entering into the merits of the matter. 6. Learned A.G.A. though has opposed the petition however could not dispute the fact that the order passed by this Court in a Petition under Section 482 bearing No. 4310 of 2021 should have been complied with and the application could have been decided only by the Court of Session and not by the Court of Magistrate. 7. On due consideration to the arguments advanced by learned counsel for the petitioner and learned A.G.A. and perusal of the record it appears that the petitioner in compliance of the judgment and order dated 2.11.2021 passed by this Court in Petition under Section 482 bearing No. 4310 of 2021 though has filed discharge application through his counsel within the prescribed period, however, learned Magistrate in the peculiar facts of this case, since this Court has exempted the appearance of the accused, ought to have provided copies of the police report and other documents, on which the prosecution is relying, to the learned counsel for the accused and thus, after complying the provision of Section 207 Cr.P.C. should have committed the case to the Court of Sessions as the offence under Section 308 Indian Penal Code is exclusively triable by Session and then the Sessions Court should have decided the discharge application on merit within the time prescribed. 8. 8. In view of the above and considering the peculiar facts of this case, the petition is allowed and the impugned order (supra) passed by learned Magistrate is set aside directing to provide a copy of the police report and other documents to learned counsel for the accused and after complying proceedings of Section 207 Cr.P.C. and Section 209 Cr.P.C. shall send the application for discharge of the accused before the appropriate Court of Session who shall in turn decide the discharge application on merits within a period of three weeks of the receipt of the discharge application. The accused applicant shall provide the certified copy of this order within a period of one week before the learned Court below.