This application under Section 482 Cr.P.C. making a prayer to quash the order dated 29.8.2009 as well as the proceeding of the case no. 2978 of 2008. As interim measure it has also been prayed that the proceeding of case no. 2978 of 2008 may be stayed.
In brief the facts of the case are that the complainant Shayam Kumar submitted an FIR against the accused Akhilesh and five others for the offence under Section 361,363, 366, 506 I.P.C.. The investigation ensued and after completion of the investigation a chargesheet was submitted against the above said six persons as well as against Smt. Puspa Devi for the offence under Section 494, 498, 120B I.P.C..
The applicants moved an application in the lower court that for the aforesaid offences under Section 494, 498, 120B I.P.C., the cognizance can be taken by the court only upon a complaint. Learned lower court however rejected the prayer on the ground that the cognizance on the chargesheet has already been taken and since the act of cognizance is bonafide, it is protected under Section 460 of the code of criminal procedure.
I considered over the matter.
The application is admitted.
Issue notice to the opposite party no. 2 returnable at an early date. Applicants are directed to take steps by Registered Post A.D. within seven days.
The opposite party no. 2 shall file the counter affidavit within three weeks after the receipt of the notice.
The A.G.A. has already received the notice of the application and he may also file the counter affidavit in the intervening period.
The case will be listed thereafter before the appropriate bench.
In the meantime the proceedings of the aforesaid case no. 2978 of 2008 shall remain stayed till the next date of listing.
Order Date :- 13.1.2010 Naresh