Mahendra Chaubey and Ors. vs State of U.P.& Ors.

S.K. Agarwal, J.—Heard learned counsel for the revisionists and learned A.G.A.

The argument advanced by the learned counsel for the revisionists is that learned Special Judge remanded the case to learned Magistrate to consider it in accordance with law. The further submission made before me is that direction of learned Special Judge in the operative part is without authority of law. I am not in agreement with the same. The power which could be exercised by the Magistrate, can very well be exercised by the Sessions Judge i.e. Court of revision. The order of the learned Magistrate is quoted in the judgment of the Special Judge which clearly indicates that the learned Magistrate has not given any proper consideration to the facts averred in the application of the victim made before him under Section 156(3) Cr. P.C. He has mainly acted on the report submitted by the police officer of the concerned police station after an enquiry. As a matter of fact, there is no provision under which the report from the police Station before passing any order for investigation of the case could be obtained by the learned Magistrate. Such a report usually is obtained only with a view to give proper consideration to the allegations made in the application. The order categorically shows that the mind has not been applied by learned Magistrate to the allegations made in the complaint. He was wrongly influenced by the police report. In these circumstances, the order passed by the learned Special Judge cannot be said to be in any manner based on entrance into the facts as alleged by the learned counsel for the revisionist. In the circumstances this application has no force. It is, accordingly, rejected. However, in the circumstances of the present case, if the applicants appear and file their bail applications, the same shall be considered by the Court below as expeditiously as possible, if possible, on the same day without any prejudice.

Revision dismissed.