Reserved on 14th August, 2018 Delivered on 24th August, 2018
Court No. - 44
Case :- APPLICATION U/S 482 No. - 27452 of 2018 Applicant :- Asad Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Alok Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Alok Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed challenging the order dated 23rd May, 2018 passed by the Additional Chief Judicial Magistrate, Hapur in Misc. Case No.
148 of 2017 (Asad vs. Dr. Narendra Ken & Others), under Sections 304, 504 and 506 I.P.C., Police Station Hapur Dehat, District Hapur.
3. The controversy involved in the present application is very short.
4. From the record, it appears that in respect of the allegations made in the complaint dated 13th September, 2017 giving rise to the above mentioned complaint case, the applicant has previously filed an application under Section 156 (3) Cr.P.C., which came to be rejected by means of the order dated 28th September, 2016. Feeling aggrieved by the aforesaid order, the applicant filed Criminal Revision No. 89 of 2016, which came to be dismissed vide order dated 27th May, 2017. Orders dated 28th September, 2016 and 27th May, 2017 have attained finality for want of any further challenge by the applicant.
5. Subsequently, on the basis of some new evidence, which is alleged to have been gathered by the applicant, a fresh complaint case bearing Complaint Case No. 148 of 2017 was filed by the applicant. The said complaint case has been dismissed by means of the impugned order dated 23rd May, 2018. Feeling aggrieved by the aforesaid order, the applicant has now approached this Court, by means of the present application under Section 482 Cr.P.C.
6. From the perusal of the impugned order dated 23rd May, 2018, it appears that placing reliance upon the judgment of this Court in Criminal Misc. Writ Petition No. 2565 of 2016, the present applicant filed the above mentioned complaint case dated 13th September, 2017.
7. This Court in the above mentioned criminal misc. writ petition has held that in case an application under Section 156 (3) Cr.P.C. or a complaint has been dismissed without touching the merits of the same, then in that situation, a fresh complaint or application under Section 156 (3) Cr.P.C. can be filed.
8. However, in the present case, the Court finds that earlier the application filed by the applicant under Section 156 (3) Cr.P.C. was decided on merits, which order was further affirmed in a criminal revision filed by the applicant himself. Thus, the adjudication of the earlier application filed by the applicant under Section 156 (3) Cr.P.C. was on merits and not otherwise. Therefore, no illegality was committed by the concerned Magistrate in dismissing the complaint filed by the applicant as not maintainable.
9. Learned counsel for the applicant could not dislodge the reasoning assigned by the court below for dismissing the complaint filed by the applicant as not maintainable.
10. The only submission urged before the court was that since new evidence has come in the knowledge of the applicant, the application ought to have been entertained to convict the guilty persons. The argument though appears to be attractive but is devoid of substance, as the same does not dilute the provision laid down by this Court as noted herein above.
11. For the aforesaid reasons, there is no force in the present application.
12. The present application fails and is, accordingly, dismissed.
(Rajeev Misra, J.) Order Date :- 24.8.2018 Sushil/-