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Rizwan v. State of U.P.& another - CRIMINAL MISC. WRIT PETITION No. 1518 of 2006 [2006] RD-AH 2989 (8 February 2006)


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Court No.43

     Criminal Misc. Writ Petition No. 1518 of 2006

  Rizwan vs. State of U.P. & another

Hon. K.N. Sinha, J.

Heard learned counsel for the petitioner and the learned A.G.A.

The brief facts, giving rise to this writ petition, are that on the F.I.R. lodged by the opposite party no.2, the case was investigated by the investigating officer, but it was not substantiated by the evidence.  Consequently, the final report was submitted.  On filing the final report, the Magistrate issued notice to the complainant, who filed protest petition.  The Magistrate allowed the protest petition, rejected the final report and summoned the accused against which a revision was filed which was dismissed by order dated 5.12.2005, which is Annexure No.7 to the writ petition.

I have perused the order dated 27.11.2003 passed by the Magistrate.  The Magistrate has observed that he perused the case diary and found that evidence of witness Smt. Shahjahan (complainant) has supported the case.  The witnesses Naushad and Hafiz Ahmad, examined under section 161 Cr.P.C., have also supported the case.  On the evidence collected by the investigating officer, the Magistrate summoned the accused.  The order of the Magistrate is therefore, perfectly justified.  He does not require aid of any other evidence.  It has been held in (2004) 7 Supreme Court Cases page 768 (Gangadhar Janardan Mhatre vs. State of Maharashtra & others) as under:

"The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused.  The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused.  Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused.  The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused.  The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also."

In this case, there was no need of adopting procedure laid down by Section 200 and 202 Cr.P.C. as no aid of extraneous evidence was taken by the Magistrate.

Learned counsel for the petitioner has relied upon 2005 (51) ACC 682 (Neeraj Tyagi vs. State of U.P.) the fact of that case was quite different to one in hand.  On the facts as mentioned in the judgment of Neeraj Tyagi (Supra) the final report was rejected but the court relied upon the affidavit of witnesses.  In that situation, the court had only two options - either to send the matter for further investigation or to follow the process of complaint case.  Thus, on the facts mentioned in the judgment the court did not pass the summoning order only on the evidence collected by the investigating officer but on the affidavits filed by the witnesses.  It is not so in the present case.  Accused were summoned on the basis of evidence collected by the investigating officer.

The writ petition is, therefore, devoid of any force and it is, hereby dismissed.




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