Fazle Haque vs State of U.P.and Others

U.S. Tripathi, J.—List revised. None present from the side of applicant.

This revision has been preferred against the order dated 2541987 passed by 1st Additional Chief Metropolitan Magistrate, Kanpur Nagar in Criminal Case No. 1485 of 1987 rejecting the application of the applicant for discharging him on the ground that bar created by Section 195 (l)(b)(i), CrPC is applicable to the case and Court cannot take cognizance without compliant filed by the Court concerned.

It appears that in a civil case between the parties a commission was issued to an Advocate to execute the writ and submit report. The Commissioner visited premises No. 40/21l. Makhania Bazar, P.S. Kotwali, Kanpur City on 11101980 at 1 p.m. to execute the Commission. There some altercation and marpit took place between the parties and a case was registered under Sections 147, 307, 382, IPC. After investigation the police submitted chargesheet and the case was pending before Committal Court. The applicant moved an application before the Committal Court for discharging him on the ground that the case is barred by provisions under Section 195 (l)(b)(i), CrPC and therefore, without a compliant in writing by the Court concerned no cognizance can be taken.

Having considered the allegations and the order of the Magistrate I find that under Section 209, CrPC the Magistrate had no power to assess the evidence and to conclude as to what offence is made out. Moreover Section 288, IPC was not mentioned in the chargesheet nor commission of any offence enumerated in Section 195 (l)(b)(i) was alleged to have been committed and therefore, the case as it stood before the Magistrate was not barred by above Section. The learned Magistrate therefore, rightly rejected the application of the applicant. The revision therefore, has no force on merit and is accordingly rejected. The stay order dated 2361987 is vacated.

Office is directed to send a copy of this order to Chief Metropolitan Magistrate, Kanpur Nagar. Revision dismissed.