Naresh Grover vs State of U.P. and Another

Hon''ble S.C. Agarwal, J.—Heard Learned Counsel for the petitioner, Learned Counsel for the complainant, learned A.G.A. for the State and perused the record.

Learned Metropolitan Magistrate, Court No. 6, Kanpur Nagar by order dated 6th October, 2010, in Criminal Case No. 5921 of 2010 (State v. Naresh Grover and others) arising out of Crime No. 144 of 2008, under Sections 323, 504, 506, 406, 420, 447 I.P.C. PS. Govind Nagar, District Kanpur Nagar, rejected the application u/s 239 Cr.P.C. preferred by the petitioner. The Criminal Revision No. 124 of 2011, preferred by the petitioner, was dismissed by Incharge Sessions Judge, Kanpur Nagar, on 26.4.2011 Both the aforesaid orders are under challenge in this writ petition.

The grievance of the petitioner is that earlier an application u/s 239 Cr.P.C. was filed by the petitioner, which was dismissed by the Metropolitan Magistrate, Court No. 10, Kanpur Nagar, on 4.11.2009 on the ground that petitioner had not yet surrendered and his application for discharge was not maintainable at that stage. Subsequently, petitioner surrendered before the Magistrate and obtained bail and, thereafter, filed a fresh application u/s 239 Cr.P.C. which has now been rejected by the Magistrate on the ground that his previous application u/s 239 Cr.P.C. was dismissed.

Earlier application u/s 239 Cr.P.C. was dismissed on the ground of maintainability, as on the date of such application, petitioner had not surrendered before the Court. Subsequent application u/s 239 Cr.P.C. was filed after getting bail. Since the earlier application was not maintainable, the subsequent application u/s 239 Cr.P.C. cannot be dismissed on the ground of rejection of earlier application, which was not maintainable. Thus, learned Magistrate as well as learned Incharge Sessions Judge committed illegality in passing the impugned orders.

Learned Counsel for the complainant has no objection if the matter is remanded back to the Magistrate for a fresh decision on the application for discharge.

The writ petition is allowed. Impugned order dated 6.10.2010, passed by the Magistrate as well as the order dated 26.4.2011, passed by the Incharge Sessions Judge are quashed. Learned Magistrate is directed to decide the application u/s 239 Cr.P.C. afresh in accordance with law after giving opportunity of hearing to both the parties as well as the State.