JUDGMENT Ravindra Singh, J.
1. Heard Sri J.S. Sengar, learned counsel for the petitioner and the learned A.G.A.
2. This petition has been filed against the orders dated 26.8.2004 and 20.1.2005 passed by the learned Chief Judicial Magistrate, Varanasi.
3. It is contended that the applicant is not named in the F.I.R. of case Crime No. 238 of 2004, under Sections 302, 307 and 120B I.P.C. and Section 7 of the Criminal Law Amendment Act, P.S. Sigra District Varanasi, but during the investigation, an application was moved by the I.O. in the court of learned C.J.M. Varanasi on 26.8.2004, praying therein that the petitioner is wanted in the above mentioned case. The efforts were made to arrest him but he could not be arrested because he was absconding from his house, so non-bailable warrant and the process of Sections 82 and 83 Cr.P.C. may be issued against the petitioner on that application learned C.J.M. issued non-bailable warrant on the same day thereafter, an application filed by the petitioner to recall the aforesaid order was also rejected by the learned C.J.M. concerned on 20.1.2005.
4. It is contended that the petitioner is a respectable person as his father is M.L.C. and his wife is Chairman, Zila Panchayat, Varanasi. There is no evidence against him but due to some political reasons, he has been falsely implicated in this case and the police has not come at the house of the petitioner. The investigating officer himself is empowered to arrest the petitioner in a case punishable under Sections 302, 307 and 120B I.P.C. and Section 7 of the Criminal Law Amendment Act, even then the police moved an application in the court of learned C.J.M., Varanasi for issuance of non-bailable warrant against the petitioner. The impugned order dated 26.8.2004 is illegal because, the I.O. has not shown any evidence collected against the petitioner in the application dated 26.8.2004 and without perusing the case diary, the learned C.J.M. has also passed the following order;
"Issue N.B.W.
Sd/-C.J.M. 26.8.2004"
5. It is passed in a mechanical manner without perusing the case diary to consider as to whether any evidence is against the petitioner or not, as such, the order dated 26.8.2004 is liable to be set aside.
6. From the perusal of the application dated 26.8.2004 filed by the I.O., it appears that no evidence collected by him has been referred therein, and from the perusal of the order dated 26.8.2004, it appears that the learned C.J.M. has not perused the case diary to ascertain as to whether, there is any evidence against the petitioner, as such, it appears that the order dated 26.8.2004 has been passed in a routine and mechanical manner and without perusing the case diary, therefore, it is an illegal order and is set aside.
7. Considering the facts and circumstances of the case and the submissions made by the learned counsel for the petitioner, the learned C.J.M. Varanasi is directed to pass a fresh order on the application dated 26.8.2004 filed by the Investigating Officer after perusing the case diary, in accordance with the provisions of law.
8. With these observations, the writ petition is disposed of finally.