Court No. - 34
Case :- APPLICATION U/S 482 No. - 13985 of 2004 Applicant :- Kamla Kant Pandey Opposite Party :- State Of U.P.
Counsel for Applicant :- J.H. Khan,W.H. Khan Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri J.H. Khan, Advocate for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed praying for quashing of entire proceedings in Criminal Case No. 2978 of 2003 (State vs. Kamla Kant Pandey), under Sections 147, 148, 304, 201, 325, 506 IPC and Section 3(2)/X S.C./S.T. Act pending in the Court of Chief Judicial Magistrate Sonebhadra.
3. An order was passed by this Court in Criminal Misc. Application No. 6250 of 2004 on 26.07.2004, which reads as under:
“Heard learned counsel for the applicants, learned A.G.A. and perused the materials on record.
The name of the opposite party No. 2 is deleted as prayed.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire criminal proceedings of criminal case No. 2978 of 2003 P.S. Chopan under section 147, 148, 304, 201, 325, 506 IPC and Section 3(2)/X of S.C. and S.T. Act and to stay the further proceedings in criminal case No. 2978 of 2003.
It is submitted that the applicant has been falsely implicated in this case on the basis of the allegations made in the First Information Report for which the inquiry was also made by the S.D.M. who had also submitted the report vide annexure-9 in this connection. The matter was also entrusted to the C.B.C.I.D. for its investigation from the local police. However the local police had submitted charge sheet on 12.6.2003 vide annexure-13 of the affidavit in a very hurried manner and lower court had summoned the applicant vide annexure-
14 of the affidavit in this regard. The C.B.C.I.D. after through investigation and taking statements of all the concerned did not find any case against the applicant and final report was submitted vide annexure-16 of the affidavit in this connection. The affidavit which filed by the Sarju vide annexure-17 of the affidavit has also disowned the First Information Report in this connection. The matter regarding the final report as per investigation made by the C.B.C.I.D. was not considered at all by the C.J.M. In passing the impugned order dated 2.6.2004 vide annexure-19 of the affidavit in this connection and in view of that there are two police report and learned Magistrate had ignored the final report submitted by the C.B.C.I.D. and as such the matter may be considered before proceeding in this matter and further after considering the objection so raised by the applicant in this regard. In view of that the application deserved to be allowed and is allowed and the order dated 2.6.2004 passed by the lower court is quashed and learned lower court shall consider the matter as per objection raised by the applicant through their counsel in this regard and pass necessary orders to proceed with the matter or otherwise by passing a reasoned order and till then the applicant shall be allowed to appear through counsel.
With the aforesaid observation the application is decided accordingly.”
4. Chief Judicial Magistrate, however, has passed impugned order dated 22.11.2004 stating that since cognizance was already taken on the charge sheet submitted by police on 12.06.2003, therefore, there was no reason to consider the matter afresh.
5. It is not the question of hearing the accused at this stage but when an order was already passed by this Court on 26.07.2004 directing Magistrate to consider charge sheet as well as C.B.C.I.D. report and thereafter take proper decision, it was incumbent upon Magistrate to examine both matters.
6. In these circumstances, order dated 22.11.2004 passed by Chief Judicial Magistrate, Sonebhadra is set aside. Chief Judicial Magistrate is directed to pass fresh order in the light of directions contained in order dated 26.07.2004 passed by this Court in Criminal Misc. Application No. 6250 of 2004. The application is accordingly allowed.
Order Date :- 30.4.2019 AK