Jhamman Singh vs State of U.P.& Qrs.

S.C. Jain, J.—This revision petition has been filed against judgment and order dated 2991988 passed by the Special Additional Sessions Judge, Bulandshahr in Criminal Revision No. 169 of 1987 (Raghuraj Sharma v. U.P. State) setting aside the order dated 3041987 passed by the Judicial MagistrateI, Bulandshahr in a case under Section 379,I.P.C.

A case under Section 379,I.P.C. was registered against Raghuraj Sharma and after investigating the case the police found that the accused had not committed the offence and the trees which were subjectmatter of the offence belonged to Raghuraj Sharma, the accused on receiving final report as submitted by the police the learned Magistrate sent notice to the complainant party to file protest petition. The protest petition along with the affidavits of certain witnesses were filed and on that basis without adopting the procedure which is to be adapted in a complaint case the Magistrate ordered summoning of the accused. That order was challenged before the Special Additional Sessions Judge, Bulandshahr wh0 by his order dated 2991988 allowed the revision petition and remanded the case back to the Magistrate to follow the procedure as laid down under Sections 200 and 202, Cr. PC. Against this order passed by the Special Additional Sessions Judge, Bulandshahr, this revision petition has been filed.

The learned special Addl. Sessions Judge has correctly appreciated the law and facts in the present circumstances of the case. Discussing various decisions of this Court on this point he correctly came to the conclusion that the order passed by the Magistrate is not an order of cognizance under Section 190(1) (b), Cr. PC. No doubt in his order he has mentioned that he has perused the case diary also but it is not there that on the basis of the material available in the case diary he took cognizance. Rather he took cognizance on the basis of protest petition accompanied by three affidavits of the witnesses and also the Gram Sampati Register of the village. For this purpose the Magistrate has not followed the procedure for complaint case and has not recorded the statement of the complainant under Section 200 and of the witnesses under Section 202, Cr. PC. and the list of the witnesses as required under the law before passing the summoning order has not been filed. I find no illegality or infirmity in the order passed by the learned Special Addl. Sessions Jude, Bulandshahr.

The revision petition is accordingly dismissed. [The order of remand passed by the Addl. Sessions Judge is correct order and is based op legal proposition. The parties are directed to appear before the court concerned and the stay order, if any, granted by this Court shall automatically stand vacated.

A copy of this order be sent to the lower court concerned.

Revision dismissed.