Poonam Srivastava, J. - (1.) -Heard learned counsel for the applicants and learned A.G A. for the State.
(2.) THE proceedings in Complaint Case No. 192 of 1998, Mukesh v. Sant Kumar, pending in the court of 3rd Additional Chief Judicial Magistrate, Etawah initiated on the basis of an application filed under Section 156 (3), Cr. P.C. at the instance of the opposite party No. 2 is sought to be quashed. THE opposite party No. 2 Mukesh Singh is an accused in Case Crime No. 58 of 1998 under Sections 452, 504, 506 and 336, I.PC. Police Station Badpura, district Etawah, which was registered on 16.7.1998. A charge-sheet has been filed against him and he is facing trial in the said case. THE submission of the counsel for the applicants is that the instant application under Section 156 (3), Cr. P.C. was filed by Mukesh Singh, opposite party No. 2, who was in jail in connection with Case Crime No. 58 of 1998 and a counterblast after he was released from jail, the present criminal proceedings were instituted against the applicants. THE applicant No. 1 is employed as an Assistant Teacher in Junior High School, Bahuri, district Etawah. THE applicant No. 2 Smt. Uma Devi is the wife of applicant No. 1 and is employed as multi purpose worker in the Medical Department in Madhya Pradesh. THE applicant Nos. 3 and 4 are sons of the applicant Nos. 1 and 2. THE applicant No. 4 Gyanendra was student of B.Sc. Part I of the Jain Degree College, Bhind. THE submissions on behalf of the applicants are many folds. THE first argument that the application under Section 156 (3), Cr. P.C. was treated straightaway as complaint and the learned Magistrate started taking statements under Sections 200 and 202, Cr. P.C., this could not be done in view of the various decisions of this Court. THE second argument is that the allegation against the applicants was under Section 307, I.P.C., in the circumstances, the learned Magistrate was bound to record the statements of all the witnesses. Several dates were fixed but the witnesses did not turn and therefore, in absence of the witnesses the applicants were summoned under Sections 323, 452, 504 and 506, I.P.C. THE next argument that the proceedings initiated on the basis of an application under Section 156 (3), Cr. P.C. was only a counterblast. Lastly counsel for the applicants has submitted that on 13.11.1998, the Magistrate has passed an order fixing 5.12.1998 for the statements under Sections 200 and 202, Cr. P.C. but despite the said order, the witnesses were not produced and finally the applicants were summoned without there being any evidence against them. THE applicants instituted Criminal Revision No. 280 of 1999 which was dismissed vide judgment and order dated 15.10.1999. THE first argument that the application under Section 156 (3), Cr. P.C. has been straightaway treated as a complaint is based on several decisions of this Court, Surya Nath Yadav v. State of U. P. and others, 2003 (3) ACR 2729 : 2003 ACC 997. Dinesh Chand and others v. State of U. P., 2000 (41) ACC 831, where it was held that the Chief Judicial Magistrate exceeded the jurisdiction in registering the application under Section 156 (3), Cr. P.C. as a complaint. Powers under Section 156 (3), Cr. P.C. are quite different from Section 200, Cr. P.C. and, therefore, the proceedings were quashed. However, the learned A.G.A. has cited a decision of the Apex Court in the case of Joseph Mathuri and another v. Swami Sachchidanand Hari Sakshi and another, 2001 (Suppl) ACC 951. In the said case, the Apex Court has set aside the decision of Allahabad High Court and allowed the appeal where the order of the Judicial Magistrate, Dehradun was quashed for the reason that the High Court had held that an application under Section 156 (3), Cr. P.C. cannot be treated as a complaint. THE Apex Court said that this view was totally erroneous and order of the High Court cannot be sustained in the eye of law. In the circumstances, the argument based on the decisions of Allahabad High Court cannot be accepted in view of the ruling of the Apex Court. However, the other arguments that the proceedings are liable to be quashed for the reason that it is counterblast and no witness appeared to support the allegation under Section 307, I.P.C. and in absence of the witnesses, the Magistrate issued the summoning order under Sections 323, 452, 504 and 506, I.P.C. I have gone through the entire record. Assuming the argument that it is only a counterblast to be correct, yet the proceedings cannot be quashed in exercise of inherent jurisdiction for the reason that prima facie bare reading of the complaint makes out allegation against the applicants and, therefore, the complaint cannot be quashed at the very inception. The summoning order was challenged in revision and the revisional court has recorded a categorical finding and arguments advanced on behalf of the applicants that Mukesh Singh, complainant is an accused and was charge-sheeted in respect of first information report which was registered at the instance of the applicants and, therefore, the application under Section 156 (3), Cr. P.C. was filed on 23.7.1998 in respect of an occurrence alleged to have taken place on 15.7.1998 without there being any injury report on record whatsoever. However, this Court cannot assume the role of trial court and entertain argument on ground of mala fide which is an exclusive jurisdiction of the trial court and this argument is always open for the applicants at the stage of Section 245, Cr. P.C. On reading of entire record, it does not warrant quashing of the case in exercise of inherent jurisdiction. In the circumstances, I am not inclined to interfere in the application and is accordingly rejected. However, in case the applicants appear within 15 days from today and move an exemption application under Section 205/317, Cr. P.C., (as the case may be) personal appearance of the applicants shall not be compelled. The applicants are permitted to appear through counsel and claim discharge at the appropriate stage, and the courts below shall decide the said application, in accordance with law, after affording opportunity of hearing to the parties, by a reasoned order.
(3.) THE Court shall take an undertaking from the applicants that they will appear on such dates if the Court requires their presence on any date for recording evidence etc. during the trial. No coercive measures shall be taken against them, till the application for discharge is finally decided.;