Om Prakash, J. - (1.) Heard Sri Viresh Misra, Senior Advocate assisted by Sri Amit Misra and Sri Nitin Chopra, learned counsel for the applicant, Sri Vivek Kumar, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
(2.) This Application u/s 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 25.8.2017 passed by Additional Chief Metropolitan Magistrate, Court No.8, Kanpur Nagar in complaint case no.4876 of 2016 (Saumya alias Vrinda Vs. Sahil Chaudhary) whereby application for discharge moved by the applicant under section 245 (2) Cr.P.C. has been rejected and non-bailable warrant has been issued against the applicant. Further prayer has been made to stay the proceedings of the aforesaid complaint case.
(3.) Submission of the learned counsel for the applicant is that although applicant had approached this Court invoking the jurisdiction under section 482 Cr.P.C., yet present application has been filed on the ground of fresh cause of action, as the applicant moved application under section 245 (2) Cr.P.C., but the same was rejected by the Magistrate concerned on insufficient grounds. Referring to the complaint and the statement recorded in support of the complaint, it is further argued that the Magistrate concerned while passing the summoning order did not go through the provisions of section 376-B IPC. It is further argued that the opposite party no.2 was accompanying the applicant on her own free will, hence offence under section 376-B is not attracted in the matter. Further submission is that the rejection of first application under section 482 Cr.P.C. is not a bar to move second application under section 482 Cr.P.C. It is also submitted that list of witnesses was also not furnished before issuing summons or coercive process against the applicant, hence on this count also entire proceedings of the aforesaid complaint case are an abuse of process of law. It is next contended that mandatory provisions for sessions trial cases under section 202 Cr.P.C. were also not followed in this matter. The Magistrate concerned rejected the application on wrong premise. No actual date and time of the offence is disclosed in the complaint or in the statement recorded in support of the complaint. Entire story set up on the complaint is improbable and unbelievable. It is further contended that applicant was not present on the date, time and place of the incident. Hence, on this score also, proceedings of the aforesaid complaint case are liable to be quashed. In support of his contention, learned counsel for the applicant has placed reliance on the decision of the Hon'ble Supreme Court passed in the case of Superintendent and Remembrancer of Legal Affairs West Bengal Versus Mohan Singh, 1974 LawSuit(SC) 311.;