Deep Chand and Another vs Abdul Gafoor and Another

V.N. Varma, J.—This revision is directed against an order dated 24-11-1977 passed by Additional Sessions Judge, Ballia, confirming the order passed by Munsif (West) and Magistrate I Class, Ballia summoning the applicants u/s 190 Code of Criminal Procedure in a case u/s 379 IPC.

On 16-4-1973 one Sri. Abdul Gafoor filed a report against the applicants at PS Sikandarpur accusing them of having committed theft of his property. On the basis of the report a case u/s 379 IPC was registered against them. The police, however, submitted a final report in that case. It appears that while that final report was still pending disposal, Abdul Gafoor gave an application in the Court of Munsif (West) Magistrate Ballia that he be heard before any final order was passed on that final report. The learned Magistrate perused the case diary submitted along with the final report and feeling satisfied that a prima facie case was made out against the applicants, summoned them u/s 190 Code of Criminal Procedure. Feeling aggrieved with this order of the learned Magistrate, the applicants went up in revision but in vain. Hence the present revision.

I have heard the learned Counsel for the applicants at sufficient length and after doing so I am firmly of the view that this revision must be allowed. I do not know on what basis the lower revisional Court has mentioned in its order that the applicants had been summoned by the Magistrate u/s 190(1)(a) Code of Criminal Procedure. The order passed by the Magistrate does not give any indication that he had summoned the applicants u/s 190(1)(a) Code of Criminal Procedure. On the contrary it gives an indication that he had summoned the applicants u/s 190(1)(b) Code of Criminal Procedure. The police had submitted a final report and along with that report it had also filed the case diary for the perusal of the Magistrate. Under law, the Magistrate was not bound to accept that final report. It was open to him to ignore that report and to pass such orders as he deemed proper after perusing the papers submitted along with the final report. It appears that after perusing the papers submitted along with the final report the Magistrate felt satisfied that there was good evidence for proceeding against the applicants u/s 379 IPC and he, therefore, summoned them for appearance in his Court on 30-11-1973. Obviously, the order which the Magistrate had passed in this case was an order u/s 190(1)(b) and not an order u/s 190(1)(a) as interpreted by the learned lower revisional Court.

Now, the next question that falls for answer is whether the Magistrate was legally competent to pass the order which he passed. All the Magistrates have not been empowered to take cognizance of an offence u/s 190(1)(b) Code of Criminal Procedure; only those Magistrates can take cognizance of an offence u/s 190(1)(b) Code of Criminal Procedure, who have been specially empowered in that behalf either by the State Government or by the District Magistrate. There is no material on record to show that Sri. Umeshwar Pandey, Munsif (West) Magistrate, Ballia had been empowered either by the State Government or by the Distt. Magistrate to take cognizance of an offence u/s 190(1)(b) Code of Criminal Procedure. That being so, the order passed by Sri Umeshwar Pandey summoning the applicants u/s 190(1)(b) Code of Criminal Procedure to stand their trial before him u/s 379 IPC was not in accordance with law. The learned Counsel for the State contended that even if the order passed by the learned Magistrate summoning the applicants was not in accordance with law this Court should not interfere with it as doing so would be in violation of Section 529 Code of Criminal Procedure. Section 529 Code of Criminal Procedure in my opinion is not applicable to the facts of this case. All that Section 529 Code of Criminal Procedure says is that if a Magistrate is not empowered to take cognizance of an offence u/s 190(1)(a) or (b) and if he still takes cognizance of that offence, and in pursuance to that records proceedings in the case those proceedings shall not be set aside merely on the ground of his not being empowered to take cognizance of the offence of which he took cognizance. In the instant case the Magistrate has not recorded any proceeding after taking cognizance of the offence u/s 190(1)(b) Code of Criminal Procedure. The applicants had challenged the order of the Magistrate summoning them on the very first day on which they were summoned. Section 529 Code of Criminal Procedure therefore, does not come into play in this case. The order passed by the Magistrate summoning the applicants is patently illegal and cannot, therefore, be allowed to stand. Consequently, this Court has no option bit to quash the order passed by him. Accordingly, I quash the orders passed by the Courts below and remand the case to the Court of Chief Judicial Magistrate Ballia for being dealt with according to law.