JUDGMENT Poonam Srivastva, J.
1. Heard Sri S.N Singh, learned counsel for the applicants, Sri Pankaj Shukla, Advocate for the contesting opposite party and learned 1 A.G.A for the State.
2. The prayer in this application is for quashing the order dated 15.9.2005 passed by Chief Judicial Magistrate, Hathras in case crime No. 78 of 2005, State v. Rakesh Kumar and Ors.. The order has been passed on a surrender application which is annexed as Annexure-12 to the affidavit. The submission on behalf of the applicants is that one N.C.R. was instituted against the opposite party No. 2 and his associates on 26.3.2005. The applicant No. 4 had received injuries in the said incident. A copy of the injury report is also brought on record. Subsequently, the opposite party No. 2 lodged a first information report which was registered at case crime No. 78 of 2005, Under Sections 147, 148, 323, 452 I.P.C. which is annexed as Annexure-3. The N.C.R. lodged by the applicants was numbered as case crime No. 78-A of 2005 and both are cross cases at present. One Ram Niwas is said to have received injuries on the side of the complainant. The Medical Board was constituted after the applicant moved the District Magistrate, Hathras and also the S.S.P. for constituting a Medical Board which was allowed. It has been averred in paragraph 11 of the affidavit filed in support of the application that despite the Investigating Officer has asked Ram Niwas to appear before the Medical Board but for the reasons best known, he is not available. However, the applicants moved surrender application on 12.9.2005, a copy of the surrender application in case No. 78 of 2005, Under Sections 147, 325, 323, 504, 506 I.P.C. is annexed as Annexure-10 to the affidavit. A police report was called for from the police station concerned and the police submitted a report on 13.9.2005 stating that the applicants are wanted in the said case Under Sections 147, 325, 323, 504 I.P.C. A copy of the police report has been annexed as Annexure-11. On the basis of police report, an order has been passed by the Chief Judicial Magistrate, Hathras to the effect that on perusal of the case diary and other evidence prima facie he is not satisfied that the offence Under Sections 147, 323, 504, 452, 308 I.P.C. is made out and, therefore, directed the accused to surrender on the next date in respect of the aforesaid offences by means of the impugned order.
3. The specific objection raised by the counsel for the applicants is that the learned Magistrate exceeded his jurisdiction while giving his findings after appraisal of evidence. It has emphatically been argued that the order passed on 15.9.2005 is on a surrender application and not while taking cognizance of offence or while summoning the accused or otherwise. The applicants moved a surrender application on which the police report was called for and the Magistrate could go no further but to take the applicants in custody in respect of the offences for which the police has reported that they are wanted. The argument advanced on behalf of the applicants is that the learned Magistrate was not acting as remand Magistrate but he was only required to pass an order on the surrender application. It is thus evident that the Magistrate exceeded his jurisdiction while passing the order that the applicants are wanted Under Section 308 I.P.C. as well.
4. Sri Pankaj Shukla, counsel for the contesting opposite party has relied upon a decision of the this Court in the case of Dinesh Kumar and Ors. v. State of U.P. and Ors., 1998 A.C.C. (Cr.) 57 The submission on the basis of the aforesaid decision is that whenever an accused is arrested and produced before the Magistrate for remand, the Magistrate has fully empowered to exercise the judicial discretion and only after applying his mind to the facts of the case remand can be granted for the offences other than those for which the accused is challaned. This decision is in respect of Section 167(1) Cr.P.C. which provides that a person arrested must be brought before the Magistrate within 24 hours of the arrest and in the event, the investigation can not be completed within that period, the Magistrate is fully empowered to take further course of action as contemplated Under sub Section (2) of Section 167 Cr.P.C, whereas in the instant case the applicants had moved surrender application for the offences in which they are wanted. The question as to whether the offences other than alleged is made out or not, will come at a subsequent stage or at the time when remand is granted by the Magistrate after an accused is arrested and produced before him. In the instant case, the Magistrate has given his considered opinion on the basis of injuries as well as the allegations in the first information report. The order altering/adding the charge could not have been passed at the stage when a surrender application was moved.
5. In the facts and circumstances, the order dated 15.9.2005 passed by the Chief Judicial Magistrate, Hathras in case No. 78 of 2005, State v. Rakesh Kumar and Ors., Under Sections 147, 148, 452, 323, 504, 506 I.P.C. Police Station Hathras Gate, District Hathras is set aside and the Chief Judicial Magistrate, Hathras is directed to pass appropriate order on the surrender application moved by the applicants.
6. With these observations, this application is finally disposed of.