Bindeshwari Prasad Tiwari and Another vs State of U.P. and Another

Hon''ble Bala Krishna Narayana, J.—Learned counsel for the applicants is permitted to correct the prayer. Heard Learned Counsel for the applicants and learned A.G.A. for the State. This application u/s 482 Cr.P.C. has been filed by the applicants with a prayer for quashing the entire proceedings in Case no.777 of 2007, Smt. Vinod Kumar vs. Pt. Bindeshwari Prasad, u/s 498A I.P.C. and 3/4 D.P. Act, P.S. Sadar Bazar, District Saharanpur.

It is contented by Learned Counsel for the applicants after final report had been submitted in the matter opposite party no.2 filed a protest petition alongwith her own affidavit and affidavits of other witnesses and the learned Magistrate without following procedure under Chapter 15 of the Cr.P.c. has taken cognizance u/s 190 (b) of Cr.P.C. of the offences allegedly committed by the applicants 498A I.P.C. and 3/4 D.P. Act and summoned them by taking into consideration the averments made in the protest petition as well as the affidavits filed therewith which is not permissible under the law. In support of this reliance has been placed in the case of Pakhandu Vs. State of U.P., 2002 -JIC-1-104, 2001-ACRR-3-2541.

Learned A.G.A. does not dispute the aforesaid factual and legal aspect of the matter.

Since from the material on record is established that the learned Magistrate has taken cognizance of the offences u/s 190(b) of the Cr.P.C. punishable under sections 498A I.P.C. and 3/4 D.P. Act allegedly committed by the applicants and summoned them to face trial on the basis of the allegations made in the protest petition and affidavits of witnesses filed alongwith the protest petition without following the procedure prescribed under Chapter 15 the impugned order by which cognizance has been taken by the applicant on 12.12.2002 Annexure no.6 to this application cannot be sustained and is liable to be set aside. This application is accordingly allowed. The impugned order dated 12.12.2002 by which learned Magistrate has taken cognizance of the offences u/s 498A I.P.C. and 3/4 D.P. Act and summoned the applicant to face trial in the aforementioned case is hereby quashed. The matter is remitted back to the learned Magistrate, Saharanpur to decide the same afresh in accordance with law.