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Baijnath And Another v. State Of U.P. And Another - APPLICATION U/s 482 No. 16730 of 2006 [2006] RD-AH 21163 (15 December 2006)


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Court No. 49

                    Crl. Misc. Application no. 16730 of 2006

Baijnath and another . . . .  . . . . .  . . . . . . . .  . . .  . . .   . .  Applicants.


State of U.P. and another  . . . . .  . .. .  . . . .  . . . . . .  . . . . Opp.Parties.                                                                                                                                                                                                                                                  


Hon'ble R.K.Rastogi,J.

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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