ZAHID HUSSAIN AND ANOTHER Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-11-104
HIGH COURT OF UTTARAKHAND
Decided on November 26,2013

Zahid Hussain And Another Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) Learned Special Judicial Magistrate, Khatima, District Udham singh Nagar passed an order on 28.01.2008 for registration of a criminal case against the sureties (applicants herein) under Section 446 Cr.P.C. Subsequently on 20.02.2008, in the absence of the sureties, learned Special Judicial Magistrate gave direction for issuance of recovery warrant against them. Aggrieved against the same, present application under Section 482 Cr.P.C. was filed by the sureties (applicants herein).
(2.) Section 449 Cr.P.C. provides as under : "449. Appeal from orders under Section 446. All orders passed under Section 446, shall be appealable,- (i) in the case of an order made by a Magistrate, to the Sessions Judge; (ii) in the case of an order made by a Court of Session, to the Court to which an appeal lies from an order made by such Court."
(3.) It will also be useful to reproduce herein the observations made by the Hon'ble Supreme Court in Mohd. Kunju vs. State of Karnataka, 2000 AIR(SC) 6, "The order in this case was passed by Chief Metropolitan Magistrate and hence the appeals preferred by appellants before the Sessions Court were according to law. Clause (ii) of section 449 will not apply in any case where the appeal lies to Session Court as the said clause deals with a different situation when the original order has been passed by the Sessions Court in which the case appeal normally lies to the High Court.";


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