- (1.) B. K. Rathi, J. This is a petition under Section 482 Cr. P. C. for quashing the order dated 3-1-2002, Annexure-9 to the petition passed by Special Judge (D. A. A.), Agra allowing the protest petition and rejecting the final report and summoning the petitioners for offences under Sections 147, 148, 149, 307, 302, 394, and 506 I. P. C.
(2.) I have heard Shri Viresh Mishra, learned Senior Advocate for the petitioners and Shri Satish Trivedi, learned Senior Advocate for Opposite Party No. 2 and the A. G. A. The facts of the case are as follows: An F. I. R. as crime No. 219 of 2001 for offences under Sections 147, 148, 149, 307, 302, 394 and 506 I. P. C. was lodged on 10-8- 2001 by Ram Khelari petitioner according to which five persons were murdered by the accused persons, named in FIR and the several other persons were injured. The case on the basis of the F. I. R. of the applicant Ram Khelari was registered, investigated and the charge-sheet have been filed against the accused persons. The opposite party No. 2 also moved an application under Section 156 (3) Cr. P. C. against the petitioners for offences under Sections 147, 148, 149, 323, 302 and 394 I. P. C. in which she alleged that the petitioners robbed ornaments, her mother has been assaulted and her father Bhoom Singh has been done to death. On this application the learned Special Judge (D. A. A.) on 3-9-2001, (Annexure-4 to the petition) directed the police to register the case and to investigate. The police investigated the matter and submitted final report Annexure-5 to the petition. Against this final report protest petition Annexure-6 to the petition was filed by opposite party No. 2. On this protest petition the evidence under Sections 200 and 202 of the Cr. P. C. was recorded and the petitioners have been summoned as said above by the impugned order dated 3-1-2002 passed by the Special Judge (DAA) Agra. Request has been made to quash the said order. The first argument of the learned Counsel for petitioner is that Special Judge (DAA), Agra, has erred in taking cognizance. The allegation under Section 394 of the Cr. P. C. is absolutely vague and false which should be rejected on the face of it. That in the application under Section 156 (3) Cr. P. C. it has been mentioned by O. P. No. 2 that ornaments of her mother were looted but no details of ornaments have been given at any stage. That therefore, prima facie offence under Section 394 Cr. P. C. is not made out and remaining Sections are 147, 148, 149, 323 and 302 I. P. C. of which Special Judge, Agra has no jurisdiction to take the cognizance.
(3.) I have considered the arguments. It is no doubt true that the details of the ornaments robbed have not even been given even in the evidence. However, for this reason at this stage it cannot be said that no offence under Section 394 of the Cr. P. C. has been made out as the allegation is that the ornaments were robbed and it can be decided after evidence. Therefore, the first argument that the Special Judge DAA, Agra has no jurisdiction to pass any order in the matter cannot be accepted. The next argument of the learned Counsel is that the offence under Section 302 Cr. P. C. is exclusively triable by the Court of Sessions as mentioned in Scheduled-I of the Cr. P. C. That the entire evidence has not been recorded as provided by the proviso to Section 202 Cr. P. C. That no list of witnesses has been filed as required by clause (2) of Section 204 Cr. P. C. Regarding this learned Counsel for the O. P. No. 2 has referred to the copy of the application dated 24-12-2001 moved by the O. P. No. 2 through Supplementary counter affidavit. In this application O. P. No. 2 has mentioned that in the aforesaid matter her statement under Section 200 Cr. P. C. and statements of witness. Rameshwar, Saligram, Vishambhar Singh and Subhash Kumar under Section 202 Cr. P. C. have been recorded. That she does not want to produce any other witness and her evidence may be deemed to be closed. It is therefore, contended that the entire evidence was produced by the O. P. No. 2. In this application the names of the witness has also been mentioned therefore, there was no need to submit the separate list of witness.;