Narayan Shukla, J. - (1.) Heard Mr. Kunwar Mridul Rakesh, learned Senior Advocate assisted by Mr. Vaibhav Kalia, learned Counsel for the Petitioners and Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
(2.) The Petitioners have challenged the order dated 28th of March, 2011, passed by the Special Chief Judicial Magistrate (Custom), Lucknow framing charges against them under Ss. 420, 467, 468, 120 -B IPC, in complaint case No. 5260 of 2010.
(3.) It is stated that the Petitioner Nos. 1 and 2 moved an application dated 29th of November, 1998, under Sec. 245(2) of the Code of Criminal Procedure, which is yet to be disposed of. Similarly the Petitioner No. 3 also moved an application under Sec. 245(2) of the Code of Criminal Procedure on 19th of January, 2008, which was rejected by the learned Magistrate on 23rd of October, 2010 being premature as the evidence under Sec. 244 of the Code of Criminal Procedure was not adduced till then. Thereafter several opportunities were provided to the opposite party No. 2 (complainant) for production of evidence, but he failed to avail the same. Ultimately on 6th of January, 2011 the learned Magistrate closed the opportunity of complainant for production of evidence under Sec. 244 of the Code of Criminal Procedure. Then he, on 21st of January, 2011 moved another application seeking one more opportunity. Considering which learned Magistrate recalled his order passed on 6th of January, 2011 and on 15th of February, 2011 recorded evidence of the complainant under Sec. 244 of the Code of Criminal Procedure. On 22nd of February, 2011 one of the co -accused Mr. Gopal Krishna Sinha moved an application seeking permission to cross examine the complainant, whose statement was recorded, but the learned Magistrate without providing opportunity of cross examination, fixed the date for framing of the charges on 3rd of March, 2011. Accordingly ultimately he framed charges on 28th of March, 2011. It is stated that the proceeding at the stage of Sec. 244 of the Code of Criminal Procedure is still incomplete, as the prosecution witness has yet to be cross examined, there was no occasion for the learned Magistrate to proceed for framing of charges against the Petitioners.;