JUDGMENT Ravindra Singh, J.
1. Heard Sri K.M. Misra learned Counsel for the applicants and the learned A.G.A.
2. In this case notice was issued by this Court to the opposite party No. 1 Deshraj and the State of U.P. On 16.4.1987. The notices have been served upon both the opposite parties. It was served upon O.P. No. 1 on 11.1.2005. The State of U.P. has not filed any counter affidavit. Even after expiry of more than one year from the service of the notice opposite party No. 1 Deshraj he has not engaged any counsel nor himself appeared before this Court to defend the case and no counter affidavit has been filed on his behalf.
3. This application is filed against the order dated 4.4.1987 passed by the learned Special Judge, D.A.A. Act, Etawah in Special Case No. 211 of 1986 whereby the applicants have been summoned to face the trial for the offences punishable under Section 394 I.P.C. It is contended by the learned Counsel for the applicants that in the present case the a complaint dated 20.10.1986 has been filed by the opposite party No. 1 in the court of learned Special Judge. D.A.A. Act, Etawah, in respect of the Incident occurred on 8.10.1986 On the basis of that complaint the learned Special Judge has taken the cognizance and summoned the applicants to face the trial under Section 394 I.P.C. It is further contended that in the present case the applicants and the complainant Deshraj belong to the same family and there is family dispute. In connection with that dispute both the parties lodged the reports at P.S. Diviyapur on the alleged date of occurrence and both were challaned under Section 107/116 Cr.P.C. In that case the complainant and his nephew were released on bail, but after great thought and consultation the complainant has filed the present complaint for the purpose of the harassment of the applicants on the basis of false and frivolous allegation. It is further contended that the learned Special Judge, D.A.A. Act, Etawah has not applied his judicial mind at the time of taking the cognizance and passed impugned order which is illegal. The learned Special Judge has not recorded any finding to show that pima facie any offence punishable under Section 394 I.P.C. is made out against the applicants or there was sufficient material to proceed further against them, therefore the impugned order dated 4.4.1987 is illegal and is liable to be set aside.
4. The learned A.G.A. submitted that the impugned order is reasoned order and learned Special Judge, D.A.A. Act, Etawah has considered the complaint, affidavits of witnesses and injury report, thereafter summoned the applicants to face the trial under Section 394 I.P.C.
5. From the perusal of the record and impugned order dated 4.4.1987 it appears that the learned Special Judge D.A.A. Act has not discussed the allegations made against the applicants and did not record any findings in the impugned order to show that on the basis of those allegations prima facie offence under Section 394 I.P.C. is made out or there was sufficient material to proceed further against the applicants. At the time of taking cognizance the learned Special Judge, D.A.A. Act, Etawah was under obligation to record such findings after considering the allegations made in complaint but by not passing such order the learned Special Judge, D.A.A. Act, Etawah has committed a manifest error, therefore, the impugned order dated 4.4.1987 is illegal and is hereby set aside.
6. Accordingly, this application is allowed.