- (1.) R. K. Rastogi, J. This application has been filed under Section 482, Cr. P. C. for quashing the orders dated 11-5-2007 and 15-5-2007 passed by the Chief Judicial Magistrate, Varanasi in Criminal Case No. 6637 of 2006, State v. Raghvendra and Ors. , under Sections 498-A, 313, 406, 504 and 506, IPC and Section 3/4 Dowry Prohibition Act issuing non bailable warrants against the applicants.
(2.) HEARD learned Counsel for the applicant and learned A. G. A. The facts relevant for disposal of the application are that the opposite party No. 2 who is wife of applicant No. 1 had moved an application under Section 156 (3), Cr. P. C. dated 4-10-2005 against the accused applicants before the Chief Judicial Magistrate, Varanasi and on the basis of the order dated 18- 10- 2005 passed by the Magistrate on that application, the police of Police Station Cantt. Varanasi registered the case as Crime No. C-161/2005 investigated the same and submitted a charge-sheet against the accused applicants on 1-7-2006 under Sections 498, 313,, 406, 504 and 506, IPC and 3/4 Dowry Prohibition Act. It may be mentioned that the accused applicants had challenged the order dated 18-10-2005 passed by the Chief Judicial Magistrate, Varanasi, by filing Criminal Revision No. 4812 of 2005 and in that revision it was ordered that the investigation of the case may go on but the applicants Nos. 2 to 7 shall not be arrested till submission of the report under Section 173 (2), Cr. P. C. The prayer for staying arrest of applicant No. 1, (husband of opposite party No. 2) was however rejected vide aforesaid order dated 14-11-2005. Thereafter applicant No. 1 Raghvendra Kumar Srivastava filed another Criminal Misc. Writ Petition No. 2908 of 2006 before this Court for quashing the F. I. R. and it was decided by a Division Bench vide order dated 8-3-2006 in which it was ordered that the petitioner shall not be arrested in the aforesaid case till the trial starts provided they pay interim compensation to the victim @ 1,500/- p. m. from the date of the order and that amount shall be deposited in the Court of Chief Judicial Magistrate, Varanasi by 7th of each month and the victim shall be entitled to withdraw the same. It was further ordered that in case of failure of payment of interim compensation, the order staying arrest of petitioner shall stand automatically vacated. The Investigation Officer submitted the charge-sheet on 1-7- 2006 as narrated above and thereafter since the accused did not appear nor did they file any documentary proof to show deposit of the aforesaid amount, the order was passed by the Chief Judicial Magistrate on 11-5-2007 for issuing non- bailable warrant against the accused persons. The application to recall that order was rejected on 15-5- 2007. Now they have moved this application under Section 482, Cr. P. C. for quashing the orders dated 15-5-2007 and 11-5-2007. They have also made a prayer that they had moved an application on 11-5- 2007 alleging that Court at Varanasi has no jurisdiction in the matter and that application moved under Section 209, Cr. P. C. should be decided first, before passing any order for compulsion of surrender of the applicants before the Court.
(3.) IT has been submitted before me that the applicant had deposited the entire amount as directed by this Court vide order dated 8-3-2006 in Criminal Misc. Writ Petition No. 2908 of 2006. IT has further been submitted that in the aforesaid order it had been provided that the petitioner shall not be arrested in the case till the trial starts, and since the offence under Section 313, Cr. P. C. (sic Penal Code) is triable by the Court of session, the trial can start only in the Court of Session and so the Magistrate has no jurisdiction to pass the order for issuing non- bailable warrant against the petitioners to procure their attendance. The accused applicants have also filed photocopies of bank drafts/challan forms to show that they have deposited the amount which was payable to opposite party No. 2, in the account of Chief Judicial Magistrate, Varanasi in the State Bank of India, Varanasi. I am of the view that the petitioner should appear before the Chief Judicial Magistrate, Varanasi and file documentary evidence of deposit of up-to-date amount of interim compensation @ of Rs. 1,500/- p. m. and on production of the documentary evidence of such deposit, the Chief Judicial Magistrate, shall consider whether the up-to-date amount has been deposited in accordance with the order of this Court or not. In case the entire amount has been deposited, warrant issued against the accused may be withdrawn if they appear before the Chief Judicial Magistrate, Varanasi on the date fixed which is 12-6- 2007. To enable them to appear before the Chief Judicial Magistrate on 12-6-2007, it is hereby ordered that the non bailable warrant issued against the applicant shall not be executed till 12-6-2007. However, if the accused do not appear before the Magistrate on the above date and do not file documentary evidence in proof of depositing the amount, this stay order shall automatically stand vacated.;