JUDGMENT :

BRIJ RAJ SINGH,J.

1. The present application has been preferred with prayer to allow this application and quash the orders dated 29.09.2021 and 11.10.2021 passed by Additional Chief Judicial Magistrate, Room No.1, Bareilly in Case No.1091 of 2021 (State Vs. Sukhbir & another) arising out of Case Crime No.463 of 2017, under Sections 201 and 306 I.P.C., Police Station Bhojipura, District Bareilly with further prayer to stay the entire proceeding of aforesaid case.

FACTS

2. Brief facts of the case are that F.I.R. under Section 306 I.P.C. in Case Crime No.463 of 2017, Police Station Bhojipura, District Bareilly was lodged by the informant. As per the F.I.R. it is narrated that deceased came to Shri Ram Murti Smarak Medical College on 03.09.2017 but she died in mysterious condition on 06.09.2017 in the hostel. In the F.I.R. it has been further mentioned that out of result of ragging she died in the hostel.

3. The case was investigated and during investigation name of the applicant came into light on the statement of room-mate of the deceased, namely, Nupur and Harshita who were friends of deceased Ananya and charge sheet was filed and summons were issued on 27.08.2011.

4. On the request of informant, CBCID enquiry was carried and closure report was filed on 11.02.2020 by which the applicant was exonerated.

5. The Magistrate issued notice to informant upon closure report on 07.08.2020.

6. The applicant applied for anticipatory bail by filing Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.7616 of 2020 which was allowed vide order dated 23.11.2020 and while granting anticipatory bail the Court directed the trial court to pass an order upon the contradictory reports filed by two investigating agencies within two months from the date of resumption of the regular functioning of the Court.

7. In the meantime, the informant filed protest petition against the closure report on 25.11.2020 against which reply was filed by the applicant. Since, the applicant was granted anticipatory bail, he preferred discharge application before the Magistrate on 15.12.2020. The applicant filed application for withdrawal of the application for discharge on 18.01.2021 on the ground that discharge application would not be maintainable before the Session Court for the offence under Section 306 I.P.C. and he further requested in the said application that the case may be committed under Section 209 Cr.P.C. since the case was exclusively triable by Session Court.

8. The Magistrate dismissed the closure report and proceeded on the discharge application on merit and passed the impugned order by rejecting the application for discharge.

9. In the meantime, non-bailable warrant was issued against the applicant on 11.10.2021, therefore, both orders i.e. rejecting the discharge application dated 29.09.2021 and the order for non-bailable warrant had been challenged by the applicant by filing the present application.

10. Heard Sri Prakhar Saran Srivastava, learned counsel for the applicant, Sri Anurag Pathak, learned counsel for opposite party no.2 and learned A.G.A. for the State as well as perused the record.

SUBMISSIONS OF APPLICANT

11. Learned counsel for the applicant has made following submissions:-

Learned counsel for the applicant has submitted that the present controversy involves offence under Section 306 I.P.C. which is exclusively triable by Session Court. In view of the aforesaid fact, it is legally not sustainable to take decision on the discharge application by the Magistrate, rather the orders will have been passed by the Session Court.

Learned counsel for the applicant has invited attention of this Court towards the decisions of Vinay Tyagi Vs. Irshad Ali alias Deepak and others, (2013) 5 SCC 762, Prateek Gupta Vs. State of U.P. and others passed in Application U/S 482 No.24770 of 2019 and Umesh Yadav Vs. State of U.P. and another, 2016 ADJ Online 0012.

Learned counsel for the applicant has submitted that as per the dictum of Vinay Tyagi (supra),