Allahabad High Court
Rakesh And Others vs State Of U.P. And Anr. on 8 September, 2011
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL MISC. WRIT PETITION No. - 17483 of 2011
Petitioner :- Rakesh And Others
Respondent :- State Of U.P. And Anr.
Petitioner Counsel :- G.S. Karatiya
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
Heard learned counsel for the petitioners and learned AGA for the State.
No notice is issued to private respondent in view of the order proposed to be passed today, however, liberty is reserved for private respondent to apply for variation or modification of this order if he feels so aggrieved.
This writ petition has been filed with a prayer to quash the order dated 16.7.2011 passed by Addl. Chief Judicial Magistrate, Court No. 5, Moradabad in Case No. 27/12/11, Km. Suman Vs. Rakesh and order dated 9.8.2011 passed by learned Sessions Judge in Criminal Revision No. Nil of 2011, Rakesh & others vs. Km. Suman and State of U.P., P.S. Baniather, District- Moradabad.
In crime no. 196 of 2010, under Section 376 (g) IPC, P.S. baniyather, police submitted final report. The complainant filed protest petition. Learned A.C.J.M. Court No. 5, Moradabad, after considering the material available on record in the case diary and also on the basis of affidavits of witnesses submitted by the complainant, took cognizance and summoned the petitioners to face trial under Section 376 (g) IPC.
Learned counsel for the petitioners submitted that while taking cognizance under Section 190 (1) (b), the Magistrate could not have taken into consideration the affidavits filed by the complainant.
I agree with the submissions advanced by learned counsel for the petitioners.
The Division Bench of this Court in Pakhando & others Vs. State of U.P. & another, 2001 (43) ACC 1096 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 under Section 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 under Section 190 (1) (a) upon the original complaint or pretest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
It is, therefore, clear that the Magistrate could have taken cognizance under Section 190 (1) (b) Cr.P.C. if there was sufficient material in the case diary but affidavits of the witnesses filed by the complainant cannot be considered at this stage. Learned Magistrate has also found that the Investigating Officer has not recorded the statements of the witnesses mentioned by the complainant. If the Magistrate was of the opinion that investigation was not done in a proper manner, then the Magistrate could have directed the Investigating Officer to conduct the further investigation or the Magistrate could have treated the protest petition as a complaint and after recording the statements of complainant and the witnesses under Sections 200 and 202 Cr.P.C., the Magistrate could have taken cognizance under Section 190 (1) (a) Cr.P.C.
The Magistrate has not adopted any of the courses mentioned above but has adopted the novel method by combining the material available in the case diary as well as affidavits submitted by the complainant, which was not permissible. Therefore, the impugned orders cannot be sustained. Learned Incharge Sessions Judge has also not considered this aspect of the case. Therefore, both the impugned orders are liable to be quashed.
The writ petition is allowed. The impugned orders dated 16.7.2011 and 9.8.2011 are quashed. The matter is remanded to the Magistrate concerned to take afresh decision in light of decision in the case of Pakhandu (Supra) after giving an opportunity of hearing to the complainant.
Order Date :- 8.9.2011
KU
