Damodar vs State of U.P.

I. S. Mathur, J.—This is a criminal revision against the order dated 711995, passed by the Chief Judicial Magistrate, Rampur in case crime No. 134 of 1994 summoning the revisionist under Sections 364/302/201 I. P. C.

I have heard learned counsel for the revisionist and have perused the record. It appears that a FIR was filed and a chargesheet has been submitted by the police in which three persons, namely, Jarrar Khan, constable Balchandra and constable Satyapal have been mentioned as the accused and the name of revisionist is not mentioned therein. An application would appear to have been moved before the Magistrate and after considering this application and the record, he found that prima facie case against the revisionist is also made out and has, by the impugned order, summoned the revisionist also.

The contention of the learned counsel for the revisionist is that in the facts of this case, the learned Magistrate could have proceeded as in a complaint case under Chapter XV of the Cr PC but he could not have taken cognizance under Section 190(1)(b), Cr PC. The submission is that once the affidavits are filed and considered by the learned Magistrate, the procedure of Chapter XV only could have been followed. It is difficult to accept this submission. In Suresh Chandra Mishra v. State of U. P. & Ors., 1994(31) ACC 751 and Shabir Ali v. State of U. P. & On., 1988 A Cr. R 456, this Court has considered this situation and has held that, merely because some affidavits are filed alongwith the petition it cannot be said that the Magistrate has taken cognizance as in a complaint or he was bound to take cognizance of the matter as in a complaint case. The learned Magistrate has also referred to two other decisions in this regard. It appears from the order of the learned Magistrate that he has basically considered the statement under Section 161 Cr PC and the other material in the case diary and on a consideration of this material, he has come to the conclusion that the process be issued against the revisionist also. No illegality or material irregularity could be said to have been committed by the learned Magistrate. The revisionist will have ample opportunity to place his case before the learned Magistrate, at the appropriate stage.

In view of the above, this revision is liable to be and is hereby dismissed.