Syed Zakir Husain vs Smt. Sunder Devi

Mahavir Singh, J.—This is a revision by Syed Zakir Husain who was one of the accused in a complaint filed by the opposite party under Sections 452, 426 and 323 IPC against the order of the learned magistrate dated 28-4-76 framing a charge against him and others under the aforementioned sections.

The relevant facts are that opposite party had filed a complaint against the applicant and twelve others under Sections 452, 426 and 323 IPC. After recording the evidence u/s 202 Code of Criminal Procedure the magistrate issued processes against the applicant and the other co-accused. Efforts were made to serve the accused. Only eight of them including applicant were served. Thereafter the magistrate after recording the statements of the applicant and seven others framed charges against them under Sections 452, 426 and 323 IPC and sent the file to the court of the Chief Judicial Magistrate to try the case himself or get it tried by some other magistrate of competent jurisdiction.

The contention of the applicant is that the procedure adopted by the learned magistrate was wholly against the provisions of the Code of Criminal Procedure. No charges could be framed against them without following the procedure u/s 252 Code of Criminal Procedure.

I have heard the learned Counsel for the applicant and the learned Counsel for the opposite party and have gone through the record of the case. The contention raised by the learned Counsel for the applicant has a great force. Before a charge could be framed by the learned magistrate in a case instituted on a complaint, the procedure to be followed was as mentioned in Section 252 Code of Criminal Procedure (Old) corresponding to Section 244 Code of Criminal Procedure (New). As this case was pending when the new Code of Criminal Procedure came into force, the provision of the old Code of Criminal Procedure would apply. According to Section 252(1) Code of Criminal Procedure the magistrate has first to hear the prosecution and take all evidence which has been filed in support of the same. In this case no witnesses were examined by the prosecution after the applicant and the other co-accused had appeared in court in response to the process issued to them. The learned magistrate had, however, mentioned that there was evidence but that evidence was led only u/s 202 Code of Criminal Procedure. It would not be regarded as an evidence against the applicant and others, because they were not present when that evidence was recorded. So no charges could be framed against the applicant and others (sic) that evidence.

Further there is another serious defect. There were as many as thirteen accused but only eight had been served. The prosecution could not also have been finalised against these eight accused until the remaining accused are served or their case was separated from that of the applicant who had put in appearance. So on that ground also the framing of charges by the magistrate was also illegal.

Learned Counsel for the Respondent has invited my attention to the fact that after the order in question was passed by the magistrate, the case had been committed to the sessions by the Additional City Magistrate Lucknow who had got this case on his file on being re-transferred by the Chief Judicial Magistrate. If that appears to be so form the perusal of the file, so it also becomes illegal and I may take suo motu notice of the same. For commitment of a case instituted on a complaint, the procedure u/s 208 Code of Criminal Procedure has to also become illegal. So from that point of view also further order of commitment is illegal and without jurisdiction.

In the result the revision is allowed. The order dated 28-4-1976 for framing of charge against the applicant and others as well as the order dated 23-6-76 are quashed. The file will go back to the magistrate concerned who will proceed to dispose of the case in accordance with law.