POONAM SRIVASTAVA, J. - (1.) HEARD Sri Somesh Khare, learned Counsel for the petitioners, Sri Sushil Shukla Advocate for the respondent No. 2 who has filed counter -affidavit, and learned A.G.A. for the State. Supplementary affidavit has been filed on behalf of the petitioners. Counsel for the petitioners states that he does not propose to file rejoinder affidavit since legal question is to be decided.
(2.) AS agreed between the parties, final arguments heard by the Counsels of the respective parties. The facts giving rise to the dispute is that a First Information Report, at the instance of the respondent No. 2 was lodged at case crime No. 111 of 2005, under Sections 419, 420, 467, 468, 478 I.P.C. on 25 -5 -2005 at Police Station Kotwali, Kanpur Nagar against the petitioners. The subject -matter of controversy relates to a property which originally belong to one Nanhoo Lal Agrawal, who expired on 12 -2 -2005. Late Nanhoo Lal Agarwal had two sons, Rajesh Agarwal and Rajendra Agarwal. The petitioner No. 1 Smt. Kajal was married to Rajesh Agarwal who died on 26 -11 -1996. Two children Km. Tapasya and Master Akash were born from the wedlock of the petitioner No. 1 and Rajesh Agarwal. It is submitted that late Nanhoo Lal Agarwal executed a Will in favour of two grand -children on 5 -1 -2005 and bequeathed entire property to minor children. After the death of Nanhoo Lal Agarwal, the beneficiaries of the Will of late Nanhool Lal Agarwal, filed an application under Section 276 of the Indian Succession Act through their mother Smt. Kajal Agarwal, petitioner No. 1. The other son of late Nanhoo Lal Agarwal, Rajendra Agarwal happens to be the brother -in -law of the petitioner No. 1 Smt. Kajal Agarwal, who is the first informant of the present case. Notice was served to Rajendra Agarwal who was also arrayed as a party in the succession case. Rajendra Agarwal subsequently applied for succession on 22 -2 -2005 and thereafter lodged a First Information Report on 29 -5 -2005 which was registered at case crime No. 222 of 2005, under Sections 419, 420, 457, 468, 471 I.P.C. A copy of the report is annexed as Annexure -1 to the writ petition. The allegation in the First Information Report is pertaining to the Will said to have been executed by late Nanhoo Lal Agarwal in favour of his grand -children. After completing the investigation, a charge -sheet was submitted in the Court of Chief Metropolitan Magistrate, Kanpur Nagar who took cognizance on 16 -2 -2006. During continuation of investigation, the petitioners preferred a writ petition for quashing of the First Information Report and stay of arrest of the accused petitioners. A Division Bench of this Court in Writ Petition No. 6024 of 2005 had stayed the arrest of the accused vide order dated 15 -6 -2005. An application for vacating the interim order dated 15 -6 -2005 was moved at the instance of the contesting respondent which was disposed of limiting the interim order till the submission of the police report. However, stay of arrest was continued during investigation. The petitioners also preferred Criminal Misc. Application No. 13040 of 2006, Smt. Kajal Poddar v. State of U.P. and Anr., for quashing the charge -sheet. The application was dismissed with an observation that in the event the applicant surrenders within a period of three weeks from the date of receipt of certified copy of the order, her bail shall be considered and disposed of by the Courts concerned expeditiously, preferably on the same day in accordance with law. The proceedings before the Chief Metropolitan Magistrate, Kanpur Nagar proceeded vide case No. 31303 of 2006, State v. Kajal and Ors. The order impugned in the instant writ petition is dated 24 -1 -2007 passed by the Sessions Judge dismissing the criminal revision No. 228 of 2006 and also for quashing the order dated 20 -9 -2006 issuing non -bailable warrants to the petitioners by the Chief Metropolitan Magistrate, Kanpur Nagar. It transpires from the perusal of the impugned order that the complainant moved an application on 4 -9 - 2006 before the Chief Metropolitan Magistrate bringing to his notice that the Court of Additional Chief Metropolitan Magistrate, Kanpur Nagar is vacant and there is no presiding officer to preside over the Court at present. On the said application, at the behest of the complainant, the Chief Metropolitan Magistrate, Kanpur Nagar called for the file from the Additional Chief Metropolitan Magistrate and thereafter non -bailable warrant was issued directly on 20 -9 -2006.
(3.) SRI Somesh Khare has emphasized that since on the previous occasion the Court was vacant, the summons could not be issued and after file was called for from the Court of Additional Chief Metropolitan Magistrate which was received on 7 -9 -2006 straight away non -bailable warrants were issued on the next date fixed i.e. 20 -9 -2006. The entire order sheet has been brought on record in support of the contention that the Additional Chief Metropolitan Magistrate, Kanpur Nagar took cognizance on 16 -6 - 2006 thereafter on three dates i.e. 10 -7 -2006, 11 -8 -2006 and 31 -8 -2006 the Court was vacant. On 6 -9 -2006 the record of the case was sent to the Chief Metropolitan Magistrate which was received on 7 -9 -2006. The Chief Metropolitan Magistrate directed that the record be put up on the next date fixed which was 20 -9 - 2006 and the transferee Court on the first date itself issued non -bailable warrant which was challenged in Criminal Revision No. 228 of 2006. Learned Counsel for the petitioners has argued that the Chief Metropolitan Magistrate could not have transferred the case from the Court of Additional Chief Metropolitan Magistrate to his own Court without any reason. Emphasis is on Section 412 Cr.P.C. which is quoted below : Reasons to be recorded. - A Sessions Judge or Magistrate making an order under Section 408, Section 409, Section 410 or Section 411 shall record his reasons for making it. ;