Banwari Chauhan vs State of U.P. and Another

S.C. Agarwal, J.—This petition under Article 226 of the Constitution of India has been preferred with a prayer to quash the orders dated 15.12.2009, 19.3.2010 passed by the Judicial Magistrate-II Bhadohi and order dated 26.5.2010 passed by the Addl. Sessions Judge, Court No. 2 Bhadohi Gyanpur (Annexure Nos. 4, 7 and 9 to the writ petition).

Heard learned Counsel for the Petitioner, learned AGA for the State and perused the impugned orders dated 19.3.2010 and 26.5.2010.

The Petitioner is an accused in Criminal Case No. 1857 of 2009 Shilwanti Pasi v. Banwari Chauhan pending in the Court of Judicial Magistrate- IInd Bhadohi under Sections 394, 323, 504, 506 IPC and u/s 3(1)(x) S.C/S.T. Act. The order taking cognizance was challenged by the Petitioner by means of criminal revision, which was disposed of by order dated 7th January, 2010 with the following directions:

However, taking into consideration the submissions by the respective counsel I dispose of this revision with a direction that in the event revisionist appears before court concerned within three weeks from today and moves application for discharge, the same shall be considered on merit after giving opportunity of hearing to both the parties and appropriate order be passed on merit. Till the disposal of the application no coercive measure shall be adopted against the revisionist. In event revisionist fails to appear before Court concerned within three weeks, this liberty stand automatically vacated.

Thereafter an application for discharge was moved by the Petitioner before the Magistrate, which was rejected on the ground that the case was triable by Special Court of Sessions and the Magistrate had no jurisdiction to discharge the accused. The revision was filed by the Petitioner has also been dismissed by the Sessions Judge.

It is submitted by the learned Counsel for the Petitioner that this case is a counterblast to the case filed by the Petitioner against the complainant and the P.W.-l, who was examined u/s 200 Code of Criminal Procedure

In Smt. Shagufta Begum and Ors. v. State of U.P. and Ors. 2010 (1) U.P. CR 163 : 2009 (6) All LJ 1100 (All), it was held by another Bench of this Court that in a case triable by Court of Sessions, the Magistrate has no jurisdiction to discharge the accused.

In this view of the aforesaid ruling, the orders passed by the Magistrate and the Sessions Judge cannot be faulted.

The writ petition is finally disposed of with a direction that if the Petitioner surrenders and applies for bail before the Magistrate concerned within a period of three weeks from today, his application for bail be disposed of by the courts below on the same day keeping in view the decision in the case of Amrawati and Anr. v. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 (SC) : AIR 2009 SC 2178 Lal Kamlendra Pratap Singh v. State of U.P.

However, it shall be open for the Petitioner to move an application before the Special Court for discharge after the case has been committed.

With these directions, the writ petition is finally disposed of.