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Amir J. Ali And 2 Others vs State Of U.P. And Another on 5 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 73

Case :- APPLICATION U/S 482 No. – 39565 of 2019

Applicant :- Amir J. Ali And 2 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Brajesh Kumar Singh,Ravish Kumar Singh

Counsel for Opposite Party :- G.A.

Hon’ble Arvind Kumar Mishra-I,J.

Heard learned counsel for the applicants, learned AGA for the State and perused the material brought on record.

By way of the instant application, the applicant has sought to quash the summoning order dated 11.07.2019 passed by the court of Additional Chief Metropolitan Magistrate- 08, Kanpur Nagar as well as the entire proceedings of Complaint Case No.48201 of 2017, Smt. Meenu Bhargav versus State of U.P. and others, under Section 406 IPC, Police Station Nawabganj, District Kanpur Nagar, pending in the court of Additional Chief Metropolitan Magistrate- 08, Kanpur Nagar.

The contention in brief is that in this case the applicants happens to be inhabitant of Mumbai as such they cannot be proceeded in such casual manner. Assuming it to be that any right is accrued in favour of the complainant even then the complaint is required to fulfil the mandate contained under Section 202 Cr.P.C., whereby specific investigation is to be borne done after obtaining the investigation report any further proceedings can be ensured. The entire summoning order is cryptic and non- speaking on the point whether any such report was obtained by the concerned Magistrate or not notwithstanding the fact as appearing on page no.95 on the application that an order under Section 202(1) Cr.P.C. for investigation of the case by a police officer was directed the court below. Further added that it is a case where the limitation prescribed for taking cognizance was not properly assessed while passing the summoning order. Had it been so no case against the applicant is made out. On factual aspect the entire allegations are false. The lower court does not have any jurisdiction to entertain such complaint.

Heard the learned A.G.A.

Upon consideration of the rival submission and upon perusal of the record and particularly fact that order under Section 202(1) Cr.P.C. for investigation of the case prior to passing the summoning order was directed by the court below which was to be conducted by a police officer and it is apparent that the order impugned dated 11.7.2019 passed in complaint case no.48201 of 2017 is silent on the point of any such report but that by itself would not be conclusive proof that no investigation whatsoever was carried out but infact if it is so that no investigation was carried out and in ignorance of that order any summoning order has been passed then the summoning order stands vitiated and the court below is required to apply its judicial mind on this particular aspect and to pass appropriate order if it considers that no proper investigation by the police was done.

In so far as the other defences of the applicants are concerned, the same need be adjudicated upon after affording opportunity of hearing to both the sides.

For the period of one month from today, no coercive action shall be taken against the applicants, if appropriate application is moved.

At this stage, no interference for the time being is required except as observed in this order.

In view of above, this application is finally disposed off.

Order Date :- 5.11.2019

Raj

 

 

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