HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Re: C.M. Application No.127633 of 2019)
Heard Ms. Radha Tripathi @ R. Mishra In-Person (opposite party No.2) and learned A.G.A. for the State of U.P. and perused the record.
2. The present application has been filed with a prayer for recalling of the order dated 31.10.2019 passed by this Court. As vide order dated 31.10.2019, the present petition was disposed of and the liberty was given to the petitioner/accused persons to appear before the court below and move their discharge applications.
3. The factual matrix of the case is that there are number of litigations going on between the petitioners and the opposite party No.2 (applicant). The opposite party No.2 filed a complaint on 22.06.2017, which was registered as a Complaint Case No.34801 of 2017 against petitioner. Thereafter, the statement under Sections 200 202 Cr.P.C. was recorded and the cognizance was taken under Sections 498A, 323, 504, 506 I.P.C. Section 4 of D.P. Act against petitioner Nos.1 to 3 and under Sections 323, 504, 506 I.P.C. against the petitioner No.4 and the summoning order was passed on 04.06.2018. The aforesaid summoning order was challenged in the present petition and after exchanging the affidavits, the petition was fixed for final disposal on 31.10.2019 and on the said date, the case was taken in the revised list, but the applicant/opposite party No.2 was not present and the case was disposed of, as it was found that defence version of the petitioners cannot be adjudicated at this stage, therefore, the liberty was given to the petitioner to appear before the court below and move their discharge applications through counsel and till the disposal of discharge application, no coercive steps were to be taken against the petitioners.
4. As the opposite party No.2 moved present recall application with the prayer to recall the order dated 31.10.2019 and decide the case after affording opportunity of hearing to the applicant/opposite party No.2 and she also stated that as there is no Presiding Officer in the trial court, therefore, only adjournments are being given to the accused persons.
5. Learned A.G.A. opposes the prayer of the applicant and submitted that the prayer of petitioners was declined by this Court at the time of passing the order dated 31.10.2019, therefore, there is no occasion to recall the aforesaid order. He further submitted that present application is barred by the provisions of Section 362 of Cr.P.C.
6. Considering the arguments of Ms. Radha Tripath @ R. Mishra In-Person as well as learned A.G.A. and going through the records, it is found that the present petition is filed by Deepak Tripathi @ Deepu S/o Ram Chetan Tiwari, Ram Chetan Tiwari S/o Chandrika Prasad Tiwari, Smt. Nirmal W/o Ram Chetan and Smt. Shikha W/o Deepak Tripathi with the prayer for quashing of the summoning order dated 04.06.2018 passed by the Additional Chief Judicial Magistrate, Court No.32, Lucknow in Complaint Case No.34801 of 2017 (Smt. Radha Tripathi vs. Deepak Tripathi and Others), under Sections 498A, 323, 504, 506 I.P.C. and Section 4 of D.P. Act, P.S. Madiyaon, District Lucknow and the case was listed on number of times and it was fixed for final disposal on 31.10.2019 and on the said date, the case was taken up in the revised list, but no one was present on behalf of opposite party No.2, then the matter was decided and the court declined to accept the prayer of petitioners for quashing of the summoning order dated 04.06.2018 and the petition was disposed of with liberty to the petitioners to appear before the court below and move their discharge applications and till the disposal of the discharge application, no coercive steps were to be taken against the petitioners.
7. Accordingly, the present application for recall of the order dated 31.10.2019 is not maintainable and hereby dismissed.
8. As the opposite party No.2/applicant informed that the trial court is lying vacant, in such circumstances, she is at liberty to move application before the Chief Judicial Magistrate, Lucknow for transfer of the case and in case, she moves any application, then the C.J.M., Lucknow is directed to decide the same within four weeks, in accordance with law.