Churai and Others vs State of U.P. and Others

Maithli Sharan, J.—This is a petition u/s 482, Code of Criminal Procedure filed by the Petitioners invoking the inherent powers of this Court.

Brief facts are that opposite party No. 3 Maya Ram filed an application u/s 133, Code of Criminal Procedure, in the Court of S. D. M., Lakhimpur-Kheri against the Petitioners and opposite parties No. 4, 5 and 6 vide Annexure No. 1. Notices were issued to the Petitioners and the opposite parties No. 4 to 6 who filed their objection on 10.8.93. On 5.1.94 statements of Petitioner Churai, opposite party No. 4 and one another person were recorded by the learned S. D. M. On the next date, i.e., 3.2.1995 the applicant-opposite party No. 3 was absent. Hence his application u/s 133, Code of Criminal Procedure dated 4.6.93 was dismissed. He filed an application dated 7.2.95, Annexure No. 7 for recalling the said order of dismissal dated 3.2.95. Notices were ordered to be issued to the Petitioners and opposite parties No. 4 to 6 for 1.3.95. Afterwards the learned S.D.M. passed an order for issuing copies to the Petitioners and opposite parties No. 4 to 6. Later on 25.5.95, the application dated 7.2.95 for recalling the order of the Court dated 3.2.95 was rejected. The very next dated on 26.5.95, opposite party No. 3 Maya Ram again moved an application u/s 133, Code of Criminal Procedure on the same facts. Petitioners and opposite parties No. 4 to 6 were again noticed who filed an objection that this second application u/s 133, Code of Criminal Procedure deserves to be dismissed. Learned Magistrate has not decided the said application as yet.

The learned Counsel, on the above facts, appearing for the Petitioners submitted that this is the abuse of the process of the court. I am afraid, since the Petitioners and opposite parties No. 4 to 6 have filed their objection before the learned S. D. M., as aforesaid, the said court must exercise its judicial mind and decide the application filed by the Petitioners. This Court u/s 482, Code of Criminal Procedure shall not decide the matter on merits. I am of the view that it is not warranted under the inherent powers of this Court. The inherent powers of the High Court u/s 482, Code of Criminal Procedure have to be exercised in the rarest of the rare cases and the High Court cannot assume the jurisdiction either of the trial court or the court of appeal or the court of revision. Thus, in view of the settled legal position, the instant petition u/s 482, Code of Criminal Procedure cannot be entertained. It is misconceived, and hence it is rejected. However, before parting with this case, I feel inclined to direct the learned S. D.M. before whom the aforesaid case is pending to decide the application of the Petitioners and opposite parties No. 4 to 6, as mentioned above, expeditiously, say, within one month from the date of receipt of the copy of this order.