Court No. - 45
Case :- APPLICATION U/S 482 No. - 38407 of 2018 Applicant :- Jata Shankar And 2 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Subhash Chandra Tiwari,Kumar Ankit Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
The present 482, Cr.P.C. application has been filed by the applicants to quash the order dated 11.9.2018 passed by the Judicial Magistrate, 1st, Jaunpur as well as entire proceedings of Case No.470 of 2010 (State of U.P. Vs. Jata Shankar) arising out of Case Crime No.15 of 2009, under Section 379, IPC & 4/10 Forest Conservation Act, P.S. Sujanganj, District Jaunpur.
The submission is that the discharge application of the applicant has been rejected vide order dated 11.9.2018 passed by the Judicial Magistrate, 1st, Jaunpur in Criminal Case No.470 of 2010 on the ground that the cognizance has already been taken and there is no other evidence available on record for consideration and therefore, the application for discharge of the applicants is not maintainable. It has been submitted that as per the law, discharge application is always maintainable and the ground raised in the discharge application is required to be adverted by the court below before passing the order. It has been submitted that the order passed by the court below is absolutely against the provisions of law.
Learned A.G.A. has submitted that at the present stage there cannot be any other evidence and therefore, the intention of the court in recording the finding that the application is not maintainable is that there is no ground for entertaining the application at this stage.
However, a perusal of the order of the court below shows that it has not recorded any finding regarding consideration of the grounds raised in the discharge application and the application has been rejected on the ground of maintainability. Therefore, the order dated 11.9.2018 passed by the Judicial Magistrate, 1st, Jaunpur is, hereby, quashed.
This application is allowed.
Court below is at liberty to pass a fresh order in accordance with law within a period of one month.
Till the disposal of the discharge application, no coercive measure shall be taken against the applicant.
Order Date :- 30.10.2018 T. Sinha