Heard Mr. Ajay Kumar Pandey, learned counsel for applicants and learned A.G.A. for State.
Challenge in this application is to the impugned order dated 31.10.2020 passed by Vth Additional Chief Judicial Magistrate, Varanasi, in Case No. 4067 of 2018 (State vs. Meraj Bano and others), under Section 406 IPC, P.S.Chetganj, District Varanasi.
Learned counsel for applicant contends that applicant had earlier approached this Court by means of Criminal Misc. Application No. 851 of 2019 (Meraj Bano and two others Vs. State of U.P. and another), wherein an interim order dated 31.1.2019 was passed. For ready reference, order dated 31.1.2019 is reproduced herein under:-
"Contention advanced on behalf of the applicants is that the first information report regarding issuance of the cheque by the applicant is absolutely false as in respect of the same amount it is alleged in the complaint under Section 138 N.I. Act, 1881, it has been stated by the same complainant that it is Mahmood Ahmad who had in fact issued a cheque dated 8th March, 2018.
It is submitted that father of the applicants Mahmood Admad has died on 25th April, 2018 and, therefore, this criminal proceedings has been maliciously instituted against the applicant with lodging of the first information report under Section 406 IPC on 2.7.2018.
Matter requires consideration.
Issue notice to opposite party no. 2 returnable within six weeks.
State may file response within the aforesaid period. Rejoinder affidavit, if any, may be filed within two weeks' thereafter.
List on the date indicated in the notice.
In the meanwhile until further orders of this Court, further proceeding initiated against the applicants pursuant to case no. 4067 of 2018, arsing out of case crime no. 160 of 2018, under Section 406 IPC, P.S. Chetganj, District Varanasi, pending in the court of ACJM, Court-9, Varanasi shall remain stayed."
Learned counsel for applicants contends that the interim order dated 31.1.2019 passed by this Court is still operating. Concerned Magistrate has no jurisdiction to terminate interim order passed by this Court. For ready reference order impugned in writ petition is reproduced herein under:
31-10-20 is'k ek0 mPpre U;k;ky; ds vkns'k ds vuqØe esa LVs lekIr fd;k tkrk gSA foi{kh dks lEeu fnukad 18-12-20 dks is'k gksA Learned A.G.A. could not dispute the submission urged by learned counsel for applicant.
Since the order of stay granted by this Court could not be terminated by the Magistrate, therefore, the order impugned in present application is without jurisdiction. As such, same can not be sustained.
Consequently, application succeeds and is allowed. Impugned order dated 31.10.2020 is quashed with liberty to the concerned Magistrate to pass appropriate order in the light of the judgement of Apex Court by making a reference of same in the subsequent order.
Order Date :- 7.1.2021 HSM