Dinesh Kumar Singh, J. - (1.) This application under section 482 Cr. P.C. has been moved with a prayer to quash the order dated 11/12/2017 passed by the Sessions Judge in Criminal Revision No. nil of 2017 and order dated 27/11/2017 passed by the Chief Judicial Magistrate Baghpat upon the discharge application filed by the applicants in Case Crime No. 132 of 2017 under Sections 323, 452, 354-B, 376/511, 504, 506 IPC, PS Baraut, District Baghpat, pending in the Court of Chief Judicial Magistrate. It is further prayed that the charge sheet dated 26/3/2017 be quashed along with the order dated 8/3/2017 passed by the Circle Officer, Baraut and order dated 24/3/2017 passed by the Superintendent of Police, Baghpat and the entire proceedings of Crime No. 132 of 2017 under sections 323, 452, 354-B, 376/511, 504, 506 IPC, PS Baraut, District Baghpat.
(2.) The learned Counsel for the applicants contended that the opposite party No. 2, Neenu Jain lodged an F.I.R. on 1/2/2017 against applicants No. 1 and 2 that on 27/1/2017 at about 4:30 PM the applicants along with one person entered into the house of the opposite party No. 2 armed with 'lathis' and 'dandas' and started abusing her and threatened that they would see as to how she lives in that house and that they would not leave her in a position to show her face. Saying this, her clothes were pulled which resulted in her blouse getting torn. During the occurrence she received injuries on her forehead and hands and thereafter they pulled her down with an intention to outrage her modesty. When her son and servant came down from the upper story, the applicant No. 2 started beating both of them with 'Danda' which resulted in causing injuries to them. When the applicant No. 1 saw them coming, he tried to strangulate her. Her son, Prayas Jain started screaming, hearing which people assembled there of the locality. Both the assailants/applicants fled from there stating that they would set their house on fire and destroy them. Her son informed the police on 100 number. The applicants challenged the said F.I.R. before High Court by filing writ petition No. 2187 of 2017, in which interim protection was granted to the applicants vide order dated 9/02/2017. Feeling annoyed by the stay of arrest of the applicants, the respondents No. 2 to 9 tried to create false evidence against the applicants. The Investigating Officer recorded the statement of the victim, her son, who did not state about attempt to rape inside the house as alleged in the F.I.R.. After collecting evidence and considering all the facts and circumstances, the Investigating Officer found the offences under section 376/511, 452 and 354 B not made out, rather the case was found made out only under sections 323, 504 and 506 IPC and the charge sheet was submitted under those sections on 27/02/2017, which was forwarded by SHO Baraut to the Circle Officer, Baraut for filing the same in Court for initiating trial. When the Circle Officer saw the charge- sheet under only sections 323, 504, 506 IPC, he ordered re-investigation of the matter, which was handed over to the different police officer of the same police station on 8/3/2017. The SP Baghpat cancelled the previous charge- sheet No. 55/17 dated 27/02/2017 vide order dated 24/3/2070 without assigning any reason which could not have been cancelled by the SP, Baghpat. Further it is mentioned that he could only direct further investigation and not re-investigation, therefore order dated 8/3/2017 passed by the Circle Officer, Baraut and the order dated 24/3/2017 passed by SP, Baghpat were illegal and liable to be quashed. Application under Section 482 Cr.P.C. No.12272 of 2017 (Sudhir Kumar Jain and another vs. State of U.P. And another) was filed by the applicants praying for quashing the order dated 08.0.3.2017 and 24.3.2017. The High Court after hearing the learned counsel for the opposite party No. 2 passed order on 13/7/2017 and finding substance in the submissions of the applicants, it was directed that they could raise all the objections including legal objections under section 227 Cr.P.C. in the court, moving discharge application, which shall be decided by the Court concerned within 5 months and till then no coercive action would be taken against the applicants. The discharge application was directed to be decided within 5 months. In pursuance of the Court's order, the applicants filed discharge application before the Court of Chief Judicial Magistrate, Baghpat, since direction was to file the same within 3 weeks, but the case was not committed by him to the Court of Sessions under section 209 Cr.P.C. and he himself had no right to hear the discharge application. Therefore, the applicants filed an application before the Court of C.J.M to commit the case to the Court of Sessions for consideration of the discharge application of the applicants.. On 26/9/2017 the Chief Judicial Magistrate rejected the said application saying that since the applicants had not got themselves released on bail before moving application for committal of the case, the same deserved to be dismissed. The case was listed before C.J.M. on 27/11/2017 whereon he heard himself on the discharge application and reserved the order which was delivered on 5/12/2017, but the date of judgment has been shown as 27/11/2017 (delivered on back date) dismissing the same, stating that the High Court in its order dated 13/11/2017 had directed the applicants to file discharge application within one month and the same was to be decided within 5 months, but after filing the discharge application the applicants did not argue on the application. The learned CJM did not touch upon the legal objections. Thereafter, after obtaining copy of the order dated 27/11/2017, revision was filed before the revisional court, who was initially satisfied, but later on called for lower Court record from the Court of C.J.M and fixed 11/12/2017 as date for hearing the revision. Even he held vide order dated 11.12.2017 that the revision was not maintainable and passed the order without hearing the counsel for the applicants. He was of the view that the revision ought to have been filed against order dated 20/9/2017 by which the application for committal of the case to the Court of Sessions had been rejected and did not find any illegality in the said order dated 27/11/2017.
(3.) Learned counsel for the opposite party no.2 Sri Pramod Kumar Dwivedi has put in appearance and has argued in rebuttal that the reliance placed by the learned counsel for the applicants on the case of Vinay Tyagi v. Irshad Ali @ Deepak & Ors., 2013 CrLJ 754, is not applicable in the present case due to facts being different, in which it was held in paragraph no. 48 that "once a report under section 173 (2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said report." He further argued that in the present matter the applicants had already filed an application under Section 482 Cr.P.C. No.12272 of 2017 with a prayer to quash the order dated 08.03.2017 passed by the Circle Officer, Baraut and order dated 24.03.2017 passed by the Superintendent of Police, Baghpat and also to quash the charge sheets dated 27.02.2017 and 26.03.2017 alongwith cognizance order dated 01.04.2017 passed by Chief Judicial Magistrate, Baghpat in Case Crime No.132 of 2017 under sections 323, 452, 354B, 376/511, 504, 506 IPC PS Baraut, District Baghpat whereon after consideration, the same was disposed of finally by this Court on 13.7.2017 with a direction that the applicants would move appropriate application for discharge through counsel before the concerned court below within a period of one month from the date of order which was directed to be considered expeditiously in accordance with law by the concerned court preferably within a period of four months. Therefore, the said application was to be disposed of within five months from the date i.e. on 13.7.2017 and in the meantime, coercive action against the applicants was restrained. Therefore, the second application under Section 482 Cr.P.C, that is the present one, would not be maintainable for the same relief because in earlier application also quashing of the charge sheet was prayed. It is further argued that in this case first charge sheet no. 55/17 under sections 323, 504, 506 IPC was submitted on 27.2.2017 which was cancelled by the S.P. Baghpat vide order dated 24.3.2017 in his administrative capacity before the said charge sheet could be filed in Court, ordered re-investigation in this matter. After re-investigation, subsequent charge-sheet no.379/17 under sections 323, 504, 506, 452, 354B, 376, 511 IPC was filed on 27.02.2017 on which cognizance was taken by the Chief Judicial Magistrate Baghpat on 01.04.2017 and after considering both the charge-sheets, this Court has passed an order on the application filed under section 482 Cr.P.C. No.12272 of 2017 on 13.07.2017 and it was not considered proper to quash them, hence this Court may not consider again to quash all those orders in the present application rather special costs should be imposed against the applicants for moving this application for the same prayer. Next, it is argued that another application under Section 482 Cr.P.C. No.33177 of 2017 (Sudhir Kumar Jain and another vs. State of U.P. and another) was moved by the applicants with a prayer to quash the order dated 26.09.2017 passed by Chief Judicial Magistrate, Baghpat in case Crime No.132 of 2017 under sections 323, 452, 354B, 376/511, 504, 506 IPC, P.S. Baraut, District Baghpat and a direction be issued to Chief Judicial Magistrate, Baghpat to commit the aforesaid case to the court of Sessions for hearing. During its consideration, it was argued before this Court that the learned Magistrate had rejected the said application for committal of the case only on the ground that the applicants had neither appeared before the Court nor had they obtained bail, hence their case could not be committed. It was submitted that the applicants had appeared before the Court through counsel as they had moved an application with a prayer to commit the case to the court of Sessions, therefore, it could not be said that they never appeared before the court of Magistrate. Further, it was argued before the Court that it was not mandatory for the applicants to obtain bail as there was no such provision making it mandatory on the part of the accused to first obtain bail. Committal proceedings were procedural in nature which had to be complied with by the court below, therefore, the Magistrate was not right in rejecting the application for committal. It was further contended by the learned counsel for the opposite party no.2 that this Court vide order dated 13.7.2017 had not granted an exemption to the applicants from compliance of section 209 Cr.P.C. which was a mandatory provision. After having considered both the contentions, this Court vide order dated 23.10.2017 had directed the applicants to move a clarification application in this regard before the Bench of this Court which had passed the order dated 13.7.2017 on the application under Section 482 Cr.P.C. No.12272 of 2017 and had directed the office to place the matter before Hon'ble the Chief Justice for nomination. It is contended that in the light of that order of this Court dated 23.10.2017 it was incumbent upon the applicants to seek clarification from the same Bench of this Court as to whether for getting the case committed to the court of Sessions, they needed to appear before court in person and seek bail from the Court of Chief Judicial Magistrate or their presence before the Chief Judicial Magistrate through counsel could be taken as appearance sufficient under law for their case to be committed. The applicants have not sought this clarification from the said Bench of this Court and hence now at this stage, they cannot raise this issue before this Court by filing the present application. He also hammered this point that provisions under sections 207 to 209 Cr.P.C. are mandatory in nature. Section 209-A Cr.P.C. clearly stipulates that the commitment of case to the court of Sessions can be done only after complying with the provisions of sections 207 or 208Cr.P.C., as the case may be and subject to the provisions of the court relating to bail.;