JUDGMENT Vinod Prasad, J.
1. The applicant Munna Singh alias Bhupendra Singh has invoked the inherent jurisdiction of this Court Under Section 482 Cr.P.C. with the prayer that this Court may graciously be pleased to direct the Chief Judicial Magistrate concerned to decide the recall application of the applicant dated 03.2.2006 filed in crime No. 372/05 by passing a speaking and reasoned order within stipulated period. The applicant in the same breath also prayed that coercive process should be kept in abeyance till the disposal of the aforesaid recall application filed by him. By the aforesaid recall application the applicant has prayed that the order of proclamation Under Section 82 Cr.P.C. issued by the CJM Azamgarh on 21.11.2005 on the application of I.O. be with drawn. A copy of the order dated 21.11.2005, passed by the CJM Azamgarh on the application of the I.O. has been filed as annexure No. 3 to the affidavit appended along with this application and the copy of the aforesaid recall application is filed as annexure 5 to the said affidavit.
2. The synopsized facts of the case are that the FIR was lodged on 14.11.2005 by Pyarey Lal Yadav at the Police Station Bardah, district Azamgarh Under Section 302, 120B and 506 IPC. The said FIR was registered as crime No. 372 of 2005 and was in respect of an incident alleged to have taken place on 14.11.2005 at 6.15 P.M. The present applicant Munna Singh alias Bhupendra Singh is named in the said FIR as an accused along with one other co-accused namely, Prince Singh s/o Surendra Singh. It was mentioned in the FIR that the son of the informant Arvind Kumar Yadav was contesting the election of village 'pradhan of village Jindopur in the panchayat election. Ramanand Nai was also the member for the post of pradhan, who was supported by Munna Singh alias Bhupendra Singh, the present applicant. During the course of canvassing for the said election, the applicant had pressurized Arvind Kumar Yadav to with draw from election but he did not succumb to the said pressure, contested the election and was declared successful defeating Ramanand Nai aforesaid. Munna Singh present applicant had threatened to get Arvind Singh Yadav annihilated for the said reason. On 14.11.2005 Prince s/o Surendra Singh, who is the nephew of Munna Singh the present applicant, along with his companion, came to the house of the informant and enquired about Arvind Kumar on the pretext that a claim has got to be signed by him, otherwise he will loose Rs. 700/-, Arvind Kumar was not present at his house and therefore, both of them started waiting on the bricks pavement for him and returned back at 6.00 PM to the house of Arvind Kumar to take him with them. Arvind Kumar had returned meanwhile and both of them accompanied Arvind Kumar on the above pretext. Sensing suspicion the informant Pyarey Lal Yadav along with his wife Smt. Hirawati Devi, daughter-in law Gyanwati Devi (wife of the deceased), grand son Amit (son of deceased) followed them and saw that the aforesaid Prince and his companion shot at and injured Arvind Kumar Yadav from their country made pistol infront of the wheat field of Bankey Yadav on the bricks pavement road and thereafter took to their heels oh the western side. The informant brought his son to the district hospital Azamgarh, where he was declared dead by the doctor. The said incident culminated into the FIR as has been mentioned aforesaid. As the applicants were evading arrest and hence I.O. moved for proclamation Under Section 82 Cr.P.C. against them which was allowed by the CJM. The applicant filed an application for recall of the said order Under Section 82 Cr.P.C., which is pending before the CJM. Hence this application.
3. It is mentioned in the affidavit filed in support of present application that the present applicant was not present and was not involved in the aforesaid crime. It is also mentioned in the affidavit that the father, mother, son and wife of the deceased had filed an affidavits (annexure 2) denying the presence of the applicant at the spot. It is also pleaded that other co-accused Prince Shobha and Parmanand Nai have already surrendered and are in jail. It is stated in the affidavit that inspite of the affidavit by witnesses the I.O. filed an application before the CJM Azamgarh, who issued nonbailable warrant against the applicant in the aforesaid crime number vide annexure 3 to the affidavit. On the aforesaid factual matrix, the applicant filed recall application on 3.2.2006, as mentioned above with the prayer that the proclamation Under Section 82 Cr.P.C. be recalled along with non-bailable warrant issued by the CJM Agamgarh on 21.11.2005 against the applicant.
4. I have heard learned Counsel for the applicant, learned AGA at a great length and have gone through the application filed by the applicant.
5. The contention of the learned Counsel for the applicant is that the CJM without any application of mind has issued non-bailable warrant against the applicant and the proclamation Under Section 82 Cr.P.C. and there is no material against the applicant in the case diary and the I.O. has malafidely filed the application or getting non-bailable warrant and proclamation against the application in the aforesaid crime number from the court of CJM Azamgarh. The learned Counsel further contended that since the affidavits have been filed by the witnesses there remains nothing for the I.O. to investigate and therefore, the order of issuing non-bailable warrant and proclamation Under Section 82 Cr.P.C. is bad in law and, therefore, the applicant had a right to get it recalled for which he had filed an application before the CJM Azamgarh, which is not being deposed off by the CJM Azamgarh illegally and therefore this Court should give the direction for the disposal of the said application.
6. Learned AGA on the other hand submitted that CJM Azamgarh while passing the impugned order of non-bailable warrant as well as proclamation Under Section 82 Cr.P.C. has perused the case diary and has looked into the material and after that it has issued non-bailable warrant and proclamation Under Section 82 Cr.P.C. against the applicant. Learned AGA also submitted that this Court or Magistrate cannot interfere into the investigation, which is the province of the Investigating Officer. He pointed out that from the case of Khowaza Nazir Ahmad till date the law is well settled that the investigation is the realm of the police and the court can not direct or guide the investigation. The I.O. is free to conduct the investigation in accordance with law as he deems fit.
7. I have given due consideration to the submissions made by the rival sides.
8. It is clear that the present applicant is an accused in case Under Section 302, 120B and 506 IPC. The matter is still under investigation. The I.O. has produced the case diary before the CJM who after perusal of the same has issued non-bailable warrant and the proclamation Under Section 82 Cr.P.C. against the applicant. The learned CJM as well as this Court cannot conduct the investigation. It is for the I.O. to decide on the material collected, as to who is the person, involved in the crime. This, he has to do on the basis of cogent and reliable evidence. Thus the contention of the learned Counsel for the applicant that there was no material before the CJM to issue non-bailable warrant and proclamation Under Section 82 Cr.P.C. on the facts of the present case, does not commend and is against the factual aspect of the matter and hence, is rejected.
9. So far as the submission made by the learned Counsel for the applicant that the affidavits have been filed by the witnesses and hence there remains nothing to be investigated is concerned the same is matter to be investigated by the I.O. as to how and under what circumstances those affidavits have been filed even denying witnessing of the incident. Therefore, those affidavits are of no relevance at the present moment and on that basis investigation cannot be halted against the applicant.
10. However, since application for recall has been filed by the present applicant and the same cannot be allowed to be kept pending and it must reach to its logical consequences it is directed that the CJM Azamgarh will decide the application- of the-applicant by passing a reasoned order in accordance with law within a period of two, weeks from the date of the receipt of the certified copy of this order. Office is directed to send a copy of this order to CJM Azamgarh within two days from today.
11. With the aforesaid direction this application is finally disposed off.