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Judgment
Barkat Ali Zaidi, J.—An application u/s 156(3), Cr. P.C. of Opp. Party No. 2 Siya Ram Sonker was allowed by the Chief Judicial Magistrate, Varanasi, against the accused-revisionists.
The revisionists approached the Hon''ble Court in Criminal Revision (No. 779 of 2006). The Hon''ble High Court vide order dated 15.2.2006 directed stay of the arrest of the revisionists while the investigation to continue.
Thereafter, revisionist (accused) gave an application (Annexure-3) supported with an affidavit (Annexure-3A) before the Magistrate (A.C.J.M.-II), Varanasi in which they mentioned, that the proceedings have been stayed and also annexed the copy of the order of the High Court. The Magistrate on 2.3.2006 (Annexure-4) sent the order of High Court to Station House Officer, P. S. Sarnath district Varanasi for compliance.
The opposite party No. 2, thereafter filed an application before the Magistrate that the accused-revisionists have wrongly mentioned in their application and affidavit that the operation of the order passed u/s 156(3), Cr. P.C. has been stayed, while only the arrest of the accused-revisionists has been stayed. They have, therefore, committed an offence, therefore, criminal proceedings u/s 340, Cr. P.C. be initiated against them. The Magistrate, thereupon, vide order dated 31.5.2007 ordered to present a complaint against the accused-revisionist.
It is against the said order, the accused-revisionists have come to this Court in Revision.
Sri Ajay Kumar Pandey, counsel for the revisionists and Sri S. D. Tripathi, Addl. Government Advocate for the State have been heard.
One of the well-settled fundamentals of law is that the commission of an offence is dependent upon mens rea. If the same is absent or cannot be discerned, in a determinative manner, no criminal liability could be fastened.
What is to be seen in this case, is that, though it was mentioned by the revisionists, in their application and affidavit that the operation of the order has been stayed, they also filed a copy of the order of the High Court, which clearly indicates that there was no intention on their part of misleading the Court, or make a wrong statement. It appears their lawyer without much thought and care, mentioned the same in their application and affidavit. If there was any intention to make a false statement and misinform the Court, they would not have annexed the copy of the order of High Court, alongwith the application. Even the mention of the factum of stay in the application and the affidavit is a little illusive.
In the circumstances, no inference should be drawn that there was any intention on the part of the revisionists to mislead the Court and furnish false information and the initiation of proceedings of complaint against them is, therefore, not warranted.
The revision must, therefore, be allowed. The revision is allowed and the proceedings directed to be initiated by the Magistrate against them u/s 340, Cr. P.C. are terminated.