Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 1251 of 2019 Petitioner :- Smt. Shahjahan Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- Jitendra Singh Counsel for Respondent :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for petitioner and learned AGA.
This petition under Article 227 of Constitution of India has been filed by the petitioner with prayer to set aside the judgment and order dated 31.10.2018 passed by learned Additional Sessions Judge/ F.T.C. No. 1, Kaushambi, in Criminal Revision No. 21 of 2018, Irshad Vs. State of U.P. and another, arising out of the order dated 23.9.2017 passed by Judicial Magistrate, Kaushambi, in Complaint Case No. 553 of 2016, Shahjahan Vs. Irshad u/s 376, 458, 506 I.P.C. P.S. Pashchim Sharira, District Kaushambi.
From perusal of record it is apparent that the petitioner had moved an application u/s 156(3) Cr.P.C. in the Court of Judicial Magistrate, Kaushambi, with the contention that on 23.4.2014 she had been all alone at her house. She was sleeping with her child Shakib. In between 12.00 and 01.00 in the night Irshad along two unknown persons did criminal trespass in her house. They were armed with weapon. They extended threat and committed rape upon her. This application was treated as a complaint case in which her statement u/s 200 Cr.P.C. and of her witnesses u/s 202 Cr.P.C. were got recorded. There had been injury over her private part. She was medically examined and summoning order was passed by the Magistrate. This order was challenged in revision before the Sessions Judge, Kaushambi, which was transferred to the court of Additional Sessions Judge/ F.T.C. No. 1, Kaushambi. This criminal revision was allowed vide impugned order dated 31.10.2018 whereby summoning order was set aside with a direction to the Magistrate for passing a fresh order. Hence this petition under Article 227 of the Constitution of India has been filed with prayer for quashing the impugned order dated 31.10.2018.
Learned counsel for petitioner argued that the summoning order was well within the jurisdiction and as per evidence on record but the revisional court has set aside the same without any cogent reason. The finding of revisional court will be abided by learned Magistrate. Hence this petition.
Learned AGA opposed the petition with this argument that the impugned order is well within jurisdiction of Sessions Judge.
From perusal of impugned order it is apparent that the learned Additional Sessions Judge has opined that the Magistrate has not analysed the evidence on record while passing the summoning order, which was required to be there u/s 204 Cr.P.C. that is why the summoning order has been set aside by the revisional court with the direction for passing afresh order after hearing. Meaning thereby the finding of Magistrate has not been set aside on merit, thereby the relief to complainant- petitioner has not been closed rather it is still open for the Magistrate to pass an order within the purview of section 204 Cr.P.C. The complainant-petitioner is having remedy to argue its case before the Magistrate, who will consider the same and pass order in accordance with settled law. Hence the petition merits its dismissal.
The petition is dismissed. However, it is to be mentioned that the Magistrate is not be influenced by the finding of revisional court. He shall hear the complainant and pass a fresh order in accordance with law.
Order Date :- 26.2.2019 Pcl