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Baijnath And Another v. State Of U.P. And Another - APPLICATION U/s 482 No. 16730 of 2006  RD-AH 21163 (15 December 2006)
Court No. 49
Crl. Misc. Application no. 16730 of 2006
Baijnath and another . . . . . . . . . . . . . . . . . . . . . . . . . Applicants.
State of U.P. and another . . . . . . .. . . . . . . . . . . . . . . . Opp.Parties.
This is an application under section 482 Cr.P.C. for quashing the proceedings of complaint case no. 3688 of 2006 ( Shakuntala Vs. Baijnath and another ) under sections 454 and 380 I.P.C. pending in the court of the Addl. Chief Judicial Magistrate, Court no. 6, Jhansi and also the summoning order dated 5.7.2006 passed by the learned Magistrate in the aforesaid complaint case.
The facts relevant for disposal of this application are that Smt. Shakuntala, O.P. no.2, had lodged a first information report against the accused applicants under section 454 and 380 I.P.C. at police station Baragaon district Jhansi and on the basis of that F.I.R. case crime no. 1013 of 2004 was registered against the accused persons at the above police station. The police after investigation of the case submitted a final report on 29.9.2004 which was filed in the court on 12.10.2004. Against that final report Smt. Shakuntala filed a protest petition for rejecting the final report and summoning the accused persons. The learned Magistrate heard the complaint of Smt. Shakuntala Devi and observed in his order that according to the allegation of the complainant the police had not examined the independent witnesses and the witnesses named by the complainant, but had examined certain other persons who were connected with the accused persons and were not independent. He, therefore, rejected the final report and allowed the protest petition and ordered that the case shall proceed as State case and summoned the accused persons under sections 454 and 380 I.P.C. Aggrieved with that order the applicants have filed this petition under section 482 Cr.P.C.
Heard learned counsel for the applicants and learned A.G.A. for the State and perused the documents filed along with this application as well as the impugned summoning order passed by the learned Magistrate.
The learned Magistrate in his order has pointed out that the police had not examined the witnesses named by the complainant and had examined those persons who were connected with the accused. He has no where stated in his order that the evidence recorded by the Investigating Officer in the case diary was sufficient to summon the accused persons. When a final report is submitted in a case by the police, then the case can be ordered to proceed as State case only when there is sufficient evidence against the accused in the case diary which had not been taken into account by the Investigating Officer while submitting the final report, but if there is no sufficient evidence against the accused in the case diary and then if the Magistrate does not agree with the final report, he has got two alternatives; firstly he can either send back the case to the prosecution for further investigation if the investigation has not been properly conducted and the witnesses named by the complainant in the F.I.R. or in the statements under section 161 Cr.P.C. have not been examined or the other alternative for the Magistrate is that he should record statement of the complainant and the witnesses named by him and then he can summon the accused on the basis of those statements if he is satisfied with them, but in that eventuality the case shall not proceed as State case but as complaint case. In the present case the learned Magistrate has neither sent back the case to the prosecution for further investigation nor did he order the complainant to produce herself and witnesses for statement before him in this protest petition ,and passed an order for summoning the accused with further direction that it shall proceed as State case. Such an order passed by the learned Magistrate is erroneous and legally invalid and it cannot be sustained.
The application under section 482 Cr.P.C. is, therefore, allowed and the impugned order dated 5.7.2005 passed by the learned Magistrate is set aside and the case is remanded back to the Magistrate for further proceeding in the light of the observations made above in the body of this judgment.
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