Dinesh Kumar Soni and Others vs State of U.P. and Another

S.C. Agarwal, J.—Heard learned Counsel for the revisionists and learned A.G.A. for the State.

The instant revision is directed against the order dated 26.6.2010. passed by the J.M. Ist, Mahoba in Criminal Case No. 82 of 2010 State v. Dinesh Kumar Soni and Ors. under Sections 457 and 380, I.P.C.. P.S. Mahobkanth, district-Mahoba, whereby the revisionists were summoned to face trial under Sections 457 and 380, I.P.C.

Since the matter is being remanded to the learned Magistrate, there is no need to issue notice to the complainant-opposite party No. 2.

F.I.R. was lodged by the complainant against unknown persons in respect of theft. The police submitted final report. The protest petition was filed by the complainant and affidavits of opposite party No. 2 and his witnesses were filed before the Magistrate. Learned Magistrate took cognizance on the basis of affidavits and summoned the revisionists to face trial under Sections 457 and 380. I.P.C. It was further directed that the case shall proceed as a State case.

It is submitted by learned Counsel for the revisionists that there was no material on the case diary against the revisionists and therefore, the Magistrate was not justified in summoning the revisionists. It is further submitted that the protest petition filed by opposite party No. 2 was not treated as a complaint, nor statements of complainant and his witnesses were recorded under Sections 200 and 202, Code of Criminal Procedure It is further contended that the cognizance was taken on the basis of affidavits, which was illegal.

Learned A.G.A. is unable to defend the impugned order.

A Division Bench of this Court in Pakhando and Ors. v. State of U.P. and Anr. (43) 2001 ACC 1096 : 2001 (3) ACR 2541, has held that:

(1) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

(2) He may take cognizance u/s 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(3) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(4) He may, without issuing process or dropping the proceedings decide to take cognizance u/s 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Code of Criminal Procedure and thereafter decide whether complaint should be dismissed or process should be issued.

The Magistrate has not adopted any of the four courses detailed above but proceeded to take cognizance on the basis of affidavits. -The cognizance of the offence cannot be taken on the basis of affidavits. Either the Magistrate should have passed the order on the basis of material present in the case diary or should have treated protest petition as a complaint. The course adopted by learned Magistrate is absolutely illegal. Therefore, the impugned order cannot be sustained and is liable to be set aside.

The revision is allowed. The impugned order dated 26th June, 2010, passed by the Magistrate is set aside. The matter is remanded to the Magistrate with a direction to decide the fate of final report and the protest petition in light of directions given above.