Decided on June 24,2013

Mohd. Tahir and Ors. Appellant
State of Uttarakhand and Anr. Respondents


Alok Singh, J. - (1.) Both these petitions are inter-connected, therefore, they are being taken up for final hearing together with the consent of the learned counsel for the parties.
(2.) Brief facts of the present case inter alia are that an F.I.R. No. 79 of 2002 under Sections 498A, 304B, 120B and 201 I.P.C. was lodged against twelve accused persons including the present petitioners with Police Station Chamba, District Tehri Garhwal. Police, having investigated the matter, submitted the charge-sheet against Mohd. Naseem, husband of the deceased, Navi Baksh, father-in-law of the deceased and Smt. Jumba Devi, mother-in-law of the deceased. However, no case was found to have been made out against the present petitioners, therefore, they were not charge sheeted by the police. Thereafter, mother of the deceased, namely, Smt. Jeenab preferred a criminal complaint case No. 1007 of 2002 in the Court of C.J.M., Tehri against the petitioners under Section 200 Cr.P.C. Having perused the statements recorded under Sections 200 and 202 Cr.P.C., learned Magistrate was pleased to summon the present petitioners vide order dated 02.11.2002. Complainant was directed to take steps for summoning of the, petitioners within three days as required under Sub-section (4) of Section 204 Cr.P.C.
(3.) Meanwhile, trial against the husband, father-in-law and mother-in-law of the deceased proceeded with and they were convicted by the Trial Court. It seems, after conviction of the husband, father-in-law and mother-in-law, pursuant to the charge-sheet filed by the police, complainant opted not to proceed with the prosecution of the present petitioners in the private complaint case. Therefore, she did not take any steps to summon the present petitioners before the learned Magistrate. Meanwhile, complainant moved an application before the learned Magistrate seeking permission to withdraw the complaint. However, vide order dated 28.07.2010, learned Magistrate was pleased to dismiss the withdrawal application moved by the complainant and was further pleased to issue non-bailable warrants against the petitioners despite the facts complainant did not take any steps nor filed list of witnesses as required under Sub-sections (2) and (4) of Section 204 Cr.P.C. As per mandate of Sub-sections (2) and (4) of Section 204 of the Code, summons shall not be issued pursuant to the summoning order unless and until, list of the prosecution witnesses and processes fee are filed by the complainant.;

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