Anil Kumar Chauhan vs The State of U.P. and Another

Mukteshwar Prasad, J.—This revision by the accused is directed against the order dated 24-9-85 passed by the then Special Judge (DAA), Mainpuri in Misc. Criminal Case No. 14 of 1984, State v. Anil Kumar whereby learned Judge summoned the accused-revisionist to face trial u/s 392, IPC and issued warrant of arrest against him.

In brief the facts of the case giving rise to this revision are as under :

An FIR was lodged by Ram Babu, opposite party No. 2 at police station Khairgarh, District Mainpuri on 5-10-84 at 10-15 a.m. and the local police registered a case at Crime No. 178 of 1984 u/s 392, IPC against the revisionist. It was alleged that on 3-10-84 at about 12.00 noon, Anil Kumar arrived at the door of the informant used abusive language to him and took away his buffalo forcibly. The case was investigated by the police; and after completing investigation the I.O. submitted steal report.

After submission of the final report, a protest petition was filed by Ram Babu praying for rejecting the report and summoning the accused. He filed his own affidavit in support of the protest petition. An affidavit of Kallu Ram brother of Ram Babu was also filed.

After having heard and considering the protest petition and the accompanying affidavits, learned Judge found that prima facie an offence u/s 392, IPC was committed by the accused. He was, therefore, summoned to face trial and warrant of arrest was issued. Further, the final report was rejected. Hence this revision.

I have heard Sri Akhilesh Singh learned counsel for the revisionist, learned A.G.A. and perused the record. The opposite party No. 2 was served personally but none appeared on his behalf.

Learned counsel for the revisionist has urged that the Court below committed illegality in summoning the revisionist to face trial and rejecting the final report submitted by the police. According to him, the correct procedure was not followed by the learned Judge and he considered protest petition and accompanying affidavits and summoned the accused.

Reliance was placed on a Division Bench decision of this Court in Pakhandu and Others Vs. State of U.P. and Another,

I have gone through the decision relied upon by the revisionist. The Division Bench placing reliance on several decisions of the Apex Court has laid down that when the Magistrate receives final report, four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require. It is well settled that before accepting or rejecting the final report, the informant has to be heard and he must be given an opportunity of hearing. Therefore, after giving an opportunity of hearing to the informant, the Magistrate may agree with the conclusions of the I.O. and accept the report or he may take cognizance u/s 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency when he finds that there is sufficient grounds to proceed. Thirdly, the Magistrate may order further investigation when it is found that investigation was made in a perfunctory manner. Lastly, the Magistrate may without issuing process or dropping the proceedings decide to take cognizance u/s 190(1)(a) upon the original complaint or protest 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. Therefore, the legal position is very clear on the point involved in this revision.

After receipt of the final report and filing of the protest petition learned Judge was required to treat the protest petition as a complaint and record the statement of the informant u/s 200 and his witnesses u/s 202 Cr.P.C. Thereafter, he was required to decide to issue process against the accused provided he found sufficient grounds in the instant case, the informant filed protest petition along with his own affidavit and an affidavit of his brother. His statement was not recorded u/s 200 Cr.P.C. and no enquiry was conducted u/s 202 Cr.P.C. Consequently, I hold that the learned Judge committed illegality in not following the correct procedure after receipt of the final report and he was not justified in summoning the accused to face trial. Therefore, the order under revision is liable to be set aside.

The revision succeeds. The impugned order dated 24-9-85 is set aside. The matter is sent back to the Court concerned for action in accordance with law and in the light of the observations made in the body of the judgment. The stay order dated 7-11-85 stands vacated.