Allahabad High Court
Bhupendra Jain And Others vs State Of U.P. And Another on 22 August, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 82
Case :- APPLICATION U/S 482 No. - 21760 of 2007
Applicant :- Bhupendra Jain And Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Lav Srivastava,Purushottam Dixit,U.S.Mishra,V.P.Srivastava
Counsel for Opposite Party :- Govt. Advocate,S.C.Jaiswal
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri Ved Prakash Ojha, learned counsel for the applicants, learned A.G.A. for the State and Sri S.C. Jaiswal, learned counsel for opposite party No.2.
This matter is mentioned just before the Court was about to arise and prayer is made for extension of interim order. However, the Court finds that it is a case of the year 2007 and it is not decided finally even after 15 years, therefore, with the consent of all the advocates appearing on behalf of rival parties, the matter has been heard finally after the Court hours from 04.05 PM to 04.30 PM.
This application was filed on behalf of applicants challenging a summoning order dated 04.07.2007 for the offence under Section 376/506 I.P.C. and Section 3(1)(12) of SC/ST Act arising out of Case No. 48 of 2003 (Kumari Savitri Vs. Bhupendra Jain and others).
The fact of the case further discloses that an F.I.R. was lodged by the opposite party No.2 against the applicants on 27.12.2002 bearing F.I.R. No. 27 of 2003 at Police Station- Hazratganj, District Lucknow under above referred offences. However, after investigation, final report was submitted as the allegations were found to be untrue and was submitted before the learned Chief Judicial Magistrate.
The learned Chief Judicial Magistrate before accepting the final report informed the complainant who filed a protest petition dated 24.03.2004 along with her affidavit. Learned Chief Judicial Magistrate also recorded her statement on oath on 23.04.2004 wherein she supported the allegations made in the first information report.
Learned Chief Judicial Magistrate, Lalitpur on the basis of the contents of the protest petition, affidavit filed by the complainant as well as statement recorded on oath rejected the final report No. 32 of 2003 and issued summon under Section 190(1)(b) Cr.P.C. after taking cognizance of an offence allegedly committed by them under Section 376/506 I.P.C. and 3(1)(12) of SC/ST Act by an order dated 04.07.2007. The said order is impugned herein.
This application was filed before this Court on 29.08.2007 and this Court vide an order dated 11.09.2007 finds that the matter requires consideration and passed an interim order whereby the further proceedings arising out of impugned order were stayed. This application was thereafter on 12.09.2011 dismissed in default. After many years, in the year 2017, restoration application was filed which was finally allowed vide an order dated 24.04.2018 and the interim order was also restored. Thereafter, the matter remained pending before this Court.
Sri Ved Prakash Ojha, learned counsel for the applicants submits that the procedure adopted by the learned Chief Judicial Magistrate to issue summon under Section 190(1)(b) Cr.P.C. after taking consideration the materials other than available along with the final report, such as protest petition, affidavit filed by the complainant and her statement on oath, is a procedural irregularity as it is a settled law that in such case, the Court has to adopt the procedure prescribed under Chapter XV of Cr.P.C. to record the statement of the complainant under Section 200 Cr.P.C. and of the victim under Section 202 Cr.P.C. and only thereafter the summon can be issued if a case is made out and for that he placed reliance upon a judgment passed by the coordinate Bench of this Court in Application u/s 482 No. 14314 of 2006 (Wakil Ahmad and others Vs. State of U.P. and another) decided on 06.03.2020.
Learned A.G.A. for the State as well as Sri S.C. Jaiswal, learned counsel appearing for opposite party No.2 has not been able to contradict the submissions of fact as well as on law.
Heard learned counsel for the parties and perused the record.
In the present case, undisputedly, the learned trial Court has taken into consideration the materials which were not available along with the final report submitted by police, such as, protest petition, affidavit filed by the complainant as well as her statement recorded on oath and only thereafter, he took cognizance of the offence and issued summon under Section 190(1)(b) of Cr.P.C. which is against the teeth of Wakil Ahmad (supra) wherein the coordinate Bench, after considering the judgment passed by Supreme Court in the cases of Tula Ram Vs. Kishore Singh, AIR 1977 SC 2401, M/s India Carat Pvt. Ltd. Vs. State of Karnataka, 1989 (26) ACC 280 (SC), Gangadhar Janardan Mhatre Vs. State of Maharashtra and others, 2004 (7) SCC 768, Rakesh and another Vs. State of U.P. and another, 2014 (13) SCC 13, Minu Kumari and another Vs. State of Bihar and others, 2006 (4) SCC 359, In Pakhando and others Vs. State of U.P. and another, 2001 (43) ACC 1096 and in Mohammad Yusuf Vs. State of U.P., 2007 (9) ADJ 294, reiterated that "Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is vitiated." (emphasis added)
In view of above discussed facts and law, the impugned summoning order is illegal. Therefore, it is quashed and set aside.
This application is allowed.
However, the Magistrate now shall proceed with the stage of consideration of final report submitted by police and the protest petition filed by the complainant and pass appropriate order in accordance with law.
Order Date :- 22.8.2022
Nirmal Sinha
