Deep Narain and Another vs State of U.P. and Another

P.K. Jain, J.—List has been revised. None appears for the revisionists. Heard Sri Virendra Singh, learned Counsel for the opposite party No. 2 and learned A.G.A. and perused the material on record. It appears that on the report of opposite party No. 2 (Kedar Nath Dube), investigation of case under Sections 147, 148, 342 and 352, I.P.C. was taken up by the police authority. A final report was submitted which was rejected by the trial court and cognizance was taken and accused were summoned. On 19.1.1983 the learned Magistrate passed the impugned order stating that complainant Kedar Nath Dube is absent. Police had submitted a final report, yet the revisionist was summoned. The complainant had not given any evidence u/s 244, Code of Criminal Procedure, hence the accused was acquitted of the offence under Sections 147, 148, 342 and 352, I.P.C. The complainant filed a revision before Sessions Judge, Deoria which was heard and disposed of by the IInd Additional Sessions Judge vide judgment and order dated 13.3.1984 and he remanded the case back to the Chief Judicial Magistrate, Deoria for disposal in accordance with law.

The judgment and order of the revisional court is challenged on the ground that the learned Additional Sessions Judge interfered with the finding of fact and thus exceeded his jurisdiction, that the accused could be discharged u/s 245, Code of Criminal Procedure, if Magistrate is satisfied that no case is made out and the learned Sessions Judge had no jurisdiction to pass the impugned order.

As pointed out above, the accused was summoned after rejecting the final report. The Magistrate shall be deemed to have taken cognizance u/s 190(1)(b) of Code of Criminal Procedure and the procedure to be followed by him shall be of a warrant case instituted on police report. Provision of Section 244, Code of Criminal Procedure would not be applicable in such a case. Learned Magistrate wrongly held that no evidence was produced u/s 244, Code of Criminal Procedure I have carefully gone through the record. The learned Sessions Judge held that the first informant was not given any opportunity of adducing the evidence and witnesses were not served with summons. In warrant case instituted on the police report, it is the duty of the court to procure attendance of the witnesses and no such steps appear to have been taken by the trial court. There is no error in the judgment and order of the revisional court. Consequently the revision fails and is hereby dismissed. Stay order dated 13.3.84 is vacated.