- (1.) SHIV Charan, J. Heard learned Counsel for the applicant learned AGA for the State and perused the entire facts of the case.
(2.) THE instant application has been moved under Section 482, Cr. P. C. for quashing the proceedings of complaint case No. 2972 of 2006 under Section 193 IPC pending in the Court of Judicial Magistrate, III Shahjahanpur From the perusal of the documents filed as Annexures with the application under Section 482 Cr. P. C. shows that an application was moved by Ram Sewak applicant in the Court of CJM Shahjahanpur for transfer of Crl. Case No. 2178 of 2004 from the Court of Civil Judge/ (JD) Tilhar to some other competent Court. It has also been alleged in the application that the Court of Civil Judge (JD) Tilhar is lying vacant for the last several months and 'one cross case ST. No. 803 of 2004, State v. Ram Sewak and others, under Sections 147,148, 149, 352, 504 and 506, IPC P. S. Khudaganj District Shahjahanpur is pending in the Court of 1st Addl. Sessions Judge. As it was a fact that the Court of Civil Judge (JD) Tilhar was lying vacant and CJM transferred the case to the Court of ACJM III Shahjahanpur vide order dated 3. 5. 2006. Thereafter Ram Das accused of the case moved an application. in the Court of CJM for initiating the proceedings against the applicant as false facts were given in the affidavit filed in support of the transfer application. This application was moved on 23. 6. 2006. Against this application Ram Sewak applicant filed objection on 19. 7. 2006 and it has been alleged in the objection that no false facts was alleged in the affidavit filed with the transfer application. The application for transfer was moved as the Court of Civil Judge/ (JD) was lying vacant and no other false facts was alleged. The application of Ram Das was decided finally by CJM vide order dated 14. 8. 2006 and the application was al lowed and order was passed for filing a complaint against Ram Sewak before the competent Court and vide order dated 18. 8. 2006 Reader of the Court,namely, Shree Pal Sharma opp. party No. 2 was authorised to file the complaint before the competent Court on behalf of CJM. On 23. 8. 2006 this complaint was filed by Shree Pal Sharma Reader of CJM Shahjahanpur by the authority of CJM. On 22. 11. 2006 Judicial Magistrate III Shahjahanpur summoned the accused/appli cant for the offence under Section 193 IPC. Prior to filing the complaint Ram Sewak filed a Criminal Revision No. 272 of 2006, Ram Sewak v. State of U. P. In the Court of Sessions Judge and this revision was decided by Addl. Sessions Judge Court No. 7 vide judgment dated 25. 8. 2007 and the revision was dismissed. Awrit petition was also filed before this Court as W. P. No. 14053/07, Ram Sewak v. State of U. P. and this writ petition was disposed of vide order dated 12. 9. 2007. It was observed in the order passed in the writ petition that the remedy available to the applicant is only by filing an application under Section 482, Cr. P. C. and the learned Counsel for the applicant argued that in view of the judgment of this Court dated 12. 9. 2007 an application under Section 482, Cr. P. C. has been instituted. It has been argued by learned Counsel for the applicant that from the perusal of the facts no offence is made out for the offence under Section 193, IPC and learned Magistrate committed gross illegality and irregularity in passing the order of summoning of the applicant. It is further argued that a revision was also instituted before the revisional Court and the revisional Court also committed a grass illegality in not considering the question of law in this order. He also argued that as the Court was lying vacant hence an application of transfer was moved for transfer of the case pending in the Court of Civil Judge/ (JD) Tilhar and it was also alleged in the affidavit that a cross case is pending in the Court of 1st Addl. Sessions Judge. When it was a fact that the Court was lying vacant hence the CJM suo-moto should have transferred the case from the vacant Court to some other functioning Court or the case should have been transferred at the instance of the parties. And in the present case as Court was vacant and Ram Sewak applicant moved an application for transfer of the case hence it cannot be said that Ram Sewak applicant has committed any offence under Section 193, IPC and as no false affidavit was filed hence the Court also committed gross illegality in summoning the applicant in the offence.
(3.) LEARNED AGA opposed the argument of learned Counsel for the applicant and argued that proper remedy in the circumstances of the case is not by filing the application under Section 482, Cr. P. C. That against the order of CJM an ap peal should have been filed under Section 341, Cr. P. C. I have considered the facts and circumstances of the case. It is undis puted fact that a criminal case No. 2171 of 2004 under Section 352,504 and 506, IPC was pending in the Court of Civil Judge/judicial Magistrate Tilhar. As the Court was lying vacant hence this applicant moved an application before CJM for transfer of the case to some other functional Court and this application was al lowed by CJM vide order dated 3. 5. 2006. Ram Das accused moved an applica tion in the Court of CJM under Section 340, Cr. P. C. for filing a complaint against the applicant for filing a false affidavit. The notice was issued of the application of the applicant and objection was filed by the applicant against the application but even then the Court of CJM allowed the application of Ram Das and directed the Reader of the Court to file a complaint in the Court of Magistrate for filing a false affidavit and in pursuance of the order passed on the application under Section 340, Cr. P. C. the complaint was filed in the Court of Magistrate and cognizance was taken for the offence under Section 193, IPC In the present case there is also a material circumstance to be mentioned that illegally revision was also filed against the order of summoning dated 22. 11. 2006 and after disposal of the revi sion, a writ petition was also instituted and this writ petition was also dismissed on 12. 9. 2007. Learned Counsel for the applicant argued that this Court in the writ petition observed that against the summoning order the only remedy available to the applicant is by filing the application under Section 482, Cr. P. C. But in my opinion the applicant adopted a wrong procedure for challenging the order of sum moning passed by the Magistrate. In the circumstances of the case as an order was passed by CJM on 14. 8. 2006 for filing a criminal complaint against Ram Sewak before the competent Court. Hence the remedy is by filing an appeal before the Sessions Judge against the order dated 14. 8. 2006.;