Rama Kant and Others vs State of U.P. and Another

Ram Autar Singh, J.—This application has been moved u/s 482, Code of Criminal Procedure on behalf of the Applicant Rama Kant and three others against, State of U.P. and Smt. Suneeta with prayer to quash proceedings of Criminal Case No. 84/2008, State v. Rama Kant and Ors. under Sections 452, 323, 504 and 506, I.P.C., P. S. Jalaun, district Jalaun, pending in the court of Judicial Magistrate, Jalaun, with the allegations that opposite party No. 2, Smt. Suneeta had lodged an F.I.R. under Sections 498A and 323, I.P.C. against Applicants No. 1 and 2 etc. through application u/s 156(3), Code of Criminal Procedure The Investigating Officer submitted charge-sheet in the case and Applicant No. 1 stood trial in Criminal Case No. 996/95 and he was acquitted of the charges levelled against him by Judicial Magistrate, Jalaun vide judgment and order dated 1.12.1999. The opposite party No. 2 also filed an application u/s 125. Code of Criminal Procedure before Judicial Magistrate, Jalaun, which was allowed. She again moved an application u/s 156(3), Code of Criminal Procedure before Judicial Magistrate, Jalaun, which was registered as Criminal Misc. Application No. 79/07, Smt. Suneeta v. Rama Kant and Ors. and the police registered an F.I.R. against the Applicants in compliance of the order dated 18.5.2007, passed by the Judicial Magistrate, Jalaun and the case was registered at Crime No. 37/2007 under Sections 452, 323, 504 and 506, I.P.C. The police investigated the case and found the same to be false and ultimately submitted a final report No. 16/07 on 30.5.2007. The Judicial Magistrate, Jalaun, issued notice to opposite party No. 2 in Criminal Case No. 59/07 and opposite party No. 2 filed a protest petition u/s 19(1)(c), Code of Criminal Procedure on 20.9.2007, alongwith her affidavit and also affidavits of her witnesses Ramdas and Upendra to this effect that the Investigating Officer did not record their statements and submitted final report. The Judicial Magistrate, Jalaun, considering the protest petition and affidavits filed by opposite party No. 2 and her witness Ramdas and Upendra took cognizance and summoned the Applicants to face trial vide his order dated 19.1.2008.

I have heard Sri B. N. Singh, learned Counsel for the Applicants, Sri Ajay Sengar, learned Counsel for opposite party No. 2 and learned A.G.A. for opposite party No. 1 on this application u/s 482, Code of Criminal Procedure and perused the record.

The learned Counsel for the Applicant has contended that the order passed by the Magistrate is illegal and the procedure adopted by him is not in accordance with law. The learned Counsel for the Applicants has relied on judgments of this Court in the cases of Shamsher and Ors. v. State of U.P. and Anr. 2009 (1) JIC 956 (All): 2007 (2) ACR 1907; Mohd. Yusuf and Ors. v. State of U.P. and Anr. 2007 (3) JIC 485 (All): 2008 (1) ACR 68 and Manoj Kumar Singh and Ors. v. State of U.P. and Anr. 2007 (3) JIC 591 (All): 2007 (3) ACR 3499, wherein this Court has observed that where the Magistrate decides to take cognizance u/s 190(1)(b) of the Code on the basis of final report he can act upon the statements of the witnesses recorded by the Investigating Officer in the case diary and material collected by him during investigation. It is not permissible to consider any material other than that collected by the Investigating Officer. In case cognizance is taken on the basis of protest petition and accompanying affidavits, the Magistrate should adopt the procedure of complaint case as contemplated under Chapter XV of the Code and record the statements of the complainant and witnesses under Sections 200 and 202 of the Code. The Magistrate having taken cognizance u/s 190(1)(b) of the Code after taking into consideration the facts stated in the protest petition and accompanying affidavits, the impugned order is against the settled legal position and cognizance is vitiated.

In view of the above proposition of law laid down by this Court in the above cases, the learned Magistrate has committed illegality in passing the impugned order, because he has relied on the protest petition and accompanying affidavits filed by opposite party No. 2 Smt. Suneeta. The learned Magistrate in such case should have adopted the procedure of complaint case provided under Chapter XV of the Code and recorded the statements of the complainant and witnesses, who had filed their affidavits, under Sections 200 and 202, Code of Criminal Procedure The Magistrate could not take cognizance u/s 190(1)(b), Code of Criminal Procedure on the basis of protest petition and affidavits filed in support thereof. The Magistrate could not consider extraneous material, i.e., protest petition and affidavits while taking cognizance u/s 190(1)(b) of Code of Criminal Procedure Consequently the order passed by the learned Magistrate suffers from illegality and is liable to be set aside.

The application moved u/s 482, Code of Criminal Procedure is allowed and the order dated 19.1.2008, passed by Judicial Magistrate, Jalaun, in Criminal Case No. 84/2008, State v. Rama Kant under Sections 452, 323, 504 and 506, I.P.C.. P. S. Jalaun, district Jalaun, is set aside. The case is remanded to the Magistrate concerned for passing appropriate order afresh, in accordance with law.