Malti Devi vs State of U.P. and others

Satyendra Singh Chauhan, J.—Heard learned counsel for the petitioner, learned A.G.A. as well as Sri Amar Singh, who has filed power on behalf of opposite party no.4.

The present petition has been filed challenging the orders dated 3.4.2010 and 16.4.2010 passed by the opposite parties no.2 and 3 respectively.

Submission of learned counsel for the petitioner is that an application was moved by opposite party no.4 under Section 156(3) Cr.P.C against the petitioner, on which the learned Magistrate proceeded to direct that it may be treated as complaint. The said order was subjected to challenge in the revisional court and the revisional court allowed the revision exparte without hearing the petitioner and directed the Magistrate to order for registration of F.I.R. against the petitioner. Thereafter, petitioner moved a recall application on 16.4.2010 and the said application is pending for adjudication, but in the meantime, the Magistrate proceeded to direct for lodging of the F.I.R. against the petitioner vide order dated 16.4.2010 in exercise of power under Section 156(3) Cr.P.C. Submission is that until and unless the recall application of the petitioner is decided, the power has not vested with the Magistrate to have proceeded with the matter. Learned counsel for the petitioner further submits that the said fact was specifically brought to the knowledge of the Magistrate, but the Magistrate by over looking the fact that recall application is pending with the revisional court proceeded to order for registration of the F.I.R. against the petitioner.

Considering the aforesaid facts, this Court is of the opinion that order of the Magistrate is per se illegal in view of the law propounded by the apex Court that even the prospective accused is required to be heard in the revision. Since the petitioner was not heard and the recall application is pending, therefore, in these circumstances the order of the Magistrate for registration of the F.I.R. was not a valid order in the eye of law and suffers from manifest illegality and is liable to be set aside.

Accordingly, petition is allowed and the order dated 16.4.2010 passed by the Judicial MagistrateII, Gonda is hereby set aside. The F.I.R. registered in pursuance to the aforesaid said order would be treated as nullity. The revisional court is directed to decide the recall application of the petitioner in accordance with law within a period of one month. Thereafter, the Magistrate will proceed to take action as directed by the revisional court.