- (1.) RAVINDRA Singh, J. This application under Section 482 Cr. P. C. has been filed by the applicants Sukhpal Madan Gopal and Suresh with a prayer to quash the order dated 8-7-2003 passed by the learned Addl. Chief Judicial Magistrate, Court No. 4, Aligarh in Complaint Case No. 1394 of 2002, whereby the applicants have been summoned to face the trial.
(2.) THE facts, in brief, of this case are that in the present case, the First Information Report was lodged by opposite party No. 2 on 28-10-2001 at Police Station Iglas, district Aligarh in Case Crime No. 301 of 2001, under Sections 498-A, 304-B, 201 I. P. C. and Section 3/4 of Dowry Prohibition Act against Gopal, Omvati and wife of Madan Gopal. THE case was investigated and charge-sheet dated 28-9-2002 has been submitted against Gopal, Omvati and Meera under Sections 498-A, 304-B and 201 I. P. C. and Section 3/4 of Dowry Prohibition Act. On the basis (c)f the charge-sheet submitted by the Investigating officer, the learned Chief Judicial Magistrate, Aligarh has taken cognizance and summOned the aforesaid accused Gopal, Omvati and Meera to face to trial under SectiOns 498-A, 304-B, 201 I. P. C. and SectiOn 3/4 of Dowry ProhibitiOn Act On 11-10-2002 but before the submissiOn of the charge-sheet and during the stage of the InvestigatiOn of the aforesaid First InformatiOn Report, the opposite party No. 2 filed a complaint dated 8-4-2002 in the Court of learned Chief Judicial Magistrate, Aligarh vide complaint Case No. 1394 of 2002. In support of the complaint the statement of the complainant was recorded under SectiOn 200 Cr. P. C. and the statements of the witnesses namely P. W. 1 Giriraj Kishor, P. W. 2 Pushpendra, P. W. 3 Rupeyendra, P. W. 4 Rajendra Prasad, P. W. 5 Minakshi, P. W. 6 Vivek P. W. 7 Kusuma, P. W. 8 Pushpa Sharma, P. W. 9 Raj kumar, P. W. 10 Jugpal, P. W. 11 Vippati and P. W. 12 Vijai Kumar were recorded under SectiOn 202 Cr. P. C. After considering the complaint and statements of the witnesses recorded under Sections 200 and 202 Cr. P. C. , the learned Additional Chief Judicial Magistrate, Court No. 4 Aligarh took the cognizance against applicants Sukhpal, Madan Mohan, Bhagwati Prasad, Jagannath Lakshman, Achal and Hazari Lal the trial for the offence punishable under Sections 498-A, 304-B, 201 I. P. C. and Section 3/4 of Dowry Prohibition Act on 8-7-2003. At the time of taking cognizance, the charge-sheet filled by the Investigating of fleer against three persons was also available before the learned Magistrate and he has considered the same also and he did not take cognizance against co-accused Gopal, Omvati and Meera because on the basis of the charge-sheet submitted against them the cognizance has also been by the learned Magistrate. Against the order dated 8-7-2003 the applicants Filed Criminal Revision No. 434 of 2003, the same has been dismissed by learned special Judge/additional Sessions Judge, Aligarh on 10- 10-2003 by affirming the order dated 8-7-2003. The applicants prefer this application under Section 482 Cr. P. C. before this Court being aggrieved from the order dated 10-10-2003 passed by the learned Special Judge/additional Sessions Judge, Aligarh and order dated 8-7-2003 passed by the learned Addl. Chief Judicial Magistrate, Court No. 4, Aligarh.
(3.) HEARD Sri G. K. Srivastava, learned Counsel for the applicants, Sri H. P. Singh, learned Counsel for the opposite party No. 2 and learned A. G. A. for the State of U. P. It is contended by the learned Counsel for the applicants that the opposite party No. 2 has lodged the First Information Report only against three persons namely Gopal, Omvati and wife of Madan Mohan, the matter was properly Investigated and the charge-sheet was submitted only against Gopal, Omvati and Meera wife of Mad an Mohan. Neither in the First Information Report nor during the investigation, any allegation was made by the opposite party No. 2 against the applicants but during pendency of the investigation, opposite party No. 2 has lodged a complaint against the applicant and nine other persons. The charge-sheet was submitted by the Investigating Officer against three persons on 28-9-2002. on the basis of the charge-sheet, the learned Chief Judicial Magistrate, Aligarh has taken cognizance on 11-10- 2002 only against three persons, but in the present case the learned Magistrate has taken cognizance on 8-7-2003, by that time the charge-sheet has been submitted and the learned Chief Judicial Magistrate, Aligarh has taken cognizance against three persons, who were charge-sheeted and other papers were also considered by the learned Magistrate concerned. In such circumstances, he was not empowered to take cognizance on the basis of the complaint filed by the opposite part No. 2, order dated 8-7-2003 passed by the learned Magistrate is illegal. The learned Additional Sessions Judge, Aligarh also did not consider the matter properly and the revision filed by the applicants on 10-10-2003. The learned Magistrate did not take cognizance as mentioned in Section 210 (2) Cr. P. C. The learned Magistrate has not summoned all the witnesses and without recording the statements of the witnesses learned Magistrate had taken cognizance and summoned the applicants. The order of taking cognizance is illegal and learned Magistrate Ignored the affidavit Vippati and Jagpal and the learned Magistrate did not go through the facts and without appreciating the allegations made against the applicant passed the order of cognizance. Even the learned Magistrate had not considered the material facts that the applicants were not named in the First Information Report but subsequently they were named by the opposite party No. 2 in the complaint, naming of the applicant was after thought. In the present case, the learned Magistrate had taken cognizance on the basis of the charge-sheet submitted by the Investigating officer and thereafter the case was committed to the Court of sessions but the learned Magistrate had committed manifest error in taking cognizance of the case for second time. Therefore the Impugned orders taking cognizance passed by the learned Magistrate and the order dated 10-10-2003 passed by the learned Additional Sessions Judge, Aligarh by which the revision filed by the applicant I was dismissed, are illegal and are liable to be set aside.;