Court No. - 49
Case :- MATTERS UNDER ARTICLE 227 No. - 6420 of 2017 Petitioner :- Sushil Kumar Rai Respondent :- The State Of U.P. & 3 Others Counsel for Petitioner :- Uma Shankar Singh Counsel for Respondent :- G.A.,Chandra Kumar Rai
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State and Sri Chandra Kumar Rai, learned counsel for the respondents.
The present petition has been filed under Article 227 of the Constitution of India, seeking quashing of the order dated 21.8.2017 passed by the Session Judge, Azamgarh in Criminal Revision No. 117 of 2017, by which the certain observations are claimed to have been made by that Court on the merits of the discharge application.
Learned counsel for the petitioners states that while remitting the matter to the learned Magistrate, no observation could have been made by the revisional court, especially as to the evidence as that would adversely affect the exercise of discretion by the learned Magistrate while considering the discharge application, upon remand.
It is further noted that the discharge application was originally rejected on 28.5.2015, which become subject matter of revision filed by the opposite party no.2. That revision was allowed on 2.1.2016. No remedy was availed by the present petitioner against that order. Consequently, it is too late in the day to contest that the order of remand made in the revision could not be made or that the matter should not have been remitted by the revisional Court.
Subsequently, upon remand being made, on 2.1.2016, the discharge application was again rejected on 3.5.2017 against which the revisional court has again set aside the order dated 3.5.2017 and remitted the matter to the learned Magistrate.
It is a settled principle, once the revisional court has set aside the matter and remitted the case to the learned court below for consideration afresh, it may not make an observation as may affect the merits of the matter.
Consequently, the present petition is disposed of with an observation that the discharge application, which is claimed to be still pending, may be decided as expeditiously as possible, preferably within a period of two months from the date of the production of a certified copy of this order, without being influenced in any manner by any observation made by the revisional court on the merits of the discharge claimed by the opposite party no.2. The learned Magistrate will exercise his power independently, strictly in accordance with law.
Order Date :- 26.7.2018 Mini