Arvind Kumar Tripathi, J. - (1.) HEARD learned counsel for the applicants, learned A.G.A. and perused the record.
(2.) THIS application under section 482 Cr.P.C. has been filed for quashing of the summoning order dated 7.11.2008 and pass an another order or direction which is proper in the fact and circumstances of the case. Learned counsel for the applicant submitted that in fact no such incident took place. With the malafide intention the complaint was made under section 156(3) Cr.P.C. However, the same was dismissed in default on 14.7.2008 since the complainant -opposite party no. 2 failed to appear before the court concerned. Thereafter neither the restoration application was moved nor separate complaint was made nor the order dismissing the application in default was recalled, hence the earlier application was not restored to its original number. However, learned A.C.J.M. First Basti has illegally and without jurisdiction not only called for the record but passed summoning order on 7.11.2008. He further submitted that in view of the provision of section 204 Cr.P.C. the complainant was required to submit the list of the witnesses. However, in the list of the witnesses the name of the accused persons were mentioned, hence on this ground also complaint was not maintainable, hence the summoning order as well as the entire proceeding is liable to be quashed.
(3.) LEARNED A.G.A. submitted that after three years he has filed this petition for quashing of the summoning order, hence on this ground the present petition is not maintainable. He further contended that whether the incident took place or not, it requires to be considered by the court below on the basis of the evidence adduced by the parties. When the proceedings was initiated it is deemed that the complainant was restored when on the application moved on behalf of the complainant, the order dated 16.7.2008 was passed for summoning record and thereafter summoning order was passed. Further this objection can be raised before the court below.;