C.A. Rahim, J. - (1.) This is an application under Section 482 Criminal Procedure Code to quash the order dated 27.9.1991 passed by Special Judge, Aligarh in Criminal Revision No. 185 of 1991 and to restore the order of the learned Chief Judicial Magistrate, Aligarh dated 10.4.1991.
(2.) Over the death of the son of the applicant on 4.12.1988 first information report was lodged on 7.12.1988 at 18.30 hours with the allegation that the son of the applicant was murdered by the opposite parties. An investigation was done and ultimately the police filed final report which was not accepted by the learned Chief Judicial Magistrate, Aligarh and by his order dated 10.4.1991 he rejected the version of the police and summoned the accused persons under Section 302 Indian Penal Code. Against that order opposite parties preferred a revision before the learned Sessions Judge, Aligarh which was heard by Special Judge (E.C. Act) Aligarh and by order dated 27.9.1991 he allowed the revision and order of the Chief Judicial Magistrate, Aligarh, set aside and the case was sent back to him for fresh decision regarding the acceptance of final report in the light of the observations made by him. The order passed by him for issue of non-bailable warrant against them was also set aside. This is the grievance of the applicant.
(3.) It has been submitted on behalf of the applicant that the learned Special Judge relied much on the dying declaration wherein an improbable story has been put in at the instance of the opposite parties and the said dying declaration should not be relied upon. He also submits that there are evidence to establish a prima facie case and in that respect learned Magistrate was right in issuing process against the opposite parties.;