Allowed

Kirt Kumar and Another v. State of U.P. and Another

Allahabad HC4 Jul 2023CRLR/4963/2022

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision holding that a Judicial Magistrate lacked jurisdiction to decide a discharge application filed by accused summoned under Section 376 IPC. The case was remitted to the Sessions Court to decide the discharge application afresh.

What did the court decide?

Impugned order dated 3.11.2022 set aside; case committed to Sessions Court; discharge application to be decided afresh.

Kirt Kumar and Another Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:130848

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Court No. - 79

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Case :- CRIMINAL REVISION No. - 4963 of 2022

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Revisionist :- Kirt Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajiv Kumar Mishra,Radhey Shyam Counsel for Opposite Party :- G.A.,Dileep Singh Yadav

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Rajiv Kumar Mishra, learned counsel for revisionists, Sri Dileep Singh Yadav, learned counsel appearing for opposite party no.2 and the learned AGA for the State.

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This criminal revision has been filed by the revisionists challenging order passed by Judicial Magistrate, Auraiya, in Complaint Case No. 09 of 2021(2905/21) of 2018(Suman vs. Kirt Kumar & another) under section 376 and 506 IPC by which discharge application filed by revisionists was rejected.

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Brief facts of the case are that opposite party no.2 has filed an application under Section 156(3) Cr.P.C. against revisionists and the learned Magistrate treated the same as a complaint case and after recording statement of the complainant and other witnesses has summoned the revisionists vide order dated 16.11.2021 under Section 376,504,506 IPC. The summoning order was challenged by the revisionists by filing Application U/S 482 Cr.P.C. No. 29309 of 2021 which was disposed of vide order dated 27.4.2022 directing the revisionists to surrender before the Court below and apply for bail. The order dated 27.4.2022 was challenged by the revisionists by filing Special Leave to Appeal(Crl.) No. 6056 of 2022 which was disposed of vide judgment and order dated 14.7.2022 by the Hon'ble Apex Court permitting the revisionists to avail the remedy of discharge before the trial court. In compliance of judgment of Hon'ble Apex Court, the revisionists had filed discharge application which was rejected by the Judicial Magistrate, Auraiya vide order dated 3.11.2022.

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Apart from other submissions, learned counsel for the revisionists has submitted that the Judicial Magistrate has no power to decide the discharge application as the revisionists were summoned under Section 376 IPC which is triable by the Sessions Court.

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Learned counsel appearing for opposite party no.2 does not dispute

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the fact that Section 376 IPC is triable by the Sessions Court and the Judicial Magistrate has no jurisdiction to decide the discharge application.

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Having considered the rival submission of learned counsel for the parties and considering the fact that Section 376 IPC is triable by Sessions Court, the Court is of the view that the learned Magistrate has exceeded its jurisdiction.

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In view of above, the criminal revision is liable to be allowed.

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The criminal revision is allowed and the impugned order dated 3.11.2022 passed by Judicial Magistrate, Auraiya in Complaint Case No. 09 of 2021(Suman vs. Kirt Kumar & another) under section 376 and 506 IPC is hereby set aside.

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The Court below is directed to commit the case to the Sessions Court within a period of one month from today and the Session Court may decide the discharge application as fresh after affording opportunity of hearing to the parties concerned within two months from the date of committal.

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Till the disposal of discharge application, no coercive action shall be taken against the revisionists.

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Order Date :- 4.7.2023 P.P.

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Digitally signed by :- POONAM PATEL High Court of Judicature at Allahabad

Kirt Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

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Kirt Kumar and Another v. State of U.P. and Another

Case brief

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