Shesh Nath Chaube and Others vs State

V.N. Varma, J.—This is an application u/s 482 Code of Criminal Procedure for quashing the order dated 8-8-1977 passed by Munsif Magistrate, Jaunpur summoning the applicants in a case under Sections 363, 366, 368, 344 and 376 IPC.

One Subedar Singh is a resident of village Surharpur P.S. Jalalpur, district Jaunpur, Durgavati Devi, aged about 15 years, is his daughter. On 24-1-1977 Subedar Singh found her missing. On 2-2-1977 he gave an application to D.M. Jaunpur suspecting foul play against his daughter. When no action was taken on his application, he filed a report at P. S. Jalalpur on 2-3-1977. In that report he gave out that he had learnt that applicant No. 1 (Shesh Nath Chaube) and applicant No. 4 (Ram Janam Singh) had kidnapped his daughter. On the basis of that report a case under Sections 363, 368, 366, 344 and 376 IPC was registered. During the course of investigation, the Investigating Officer found that applicants Nos. 2, 3 and 5 also had a hand in the commission of this crime. The Investigating Officer submitted his report to S. P. Jaunpur. After the scrutiny of the case, it was found that it was not a fit case in which charge sheet should be filed in Court. S. P. Jaunpur passed an order that S. O. Jalalpur should submit a final report in the case. Accordingly, a final report was submitted in the Court of the Magistrate concerned. The Magistrate, however, did not accept the final report and vide order dated 8-8-1977 summoned the applicants to stand trial under Sections 363, 368, 344, 366 and 376 IPC. It is for the quashment of this order that this application u/s 482 Code of Criminal Procedure has been filed.

I have heard the learned Counsel for the parties at sufficient length and after doing so I am firmly of the view that this application u/s 482 Code of Criminal Procedure must be allowed. I find that the order which the learned Magistrate has passed in this case is without jurisdiction and must, therefore, be set aside. u/s 190 Code of Criminal Procedure (new) a Magistrate can take cognizance of a case in three contingencies, firstly upon receiving a complaint, secondly, upon a police report and thirdly, upon information received from any person other than a police officer, or upon his own knowledge. Admittedly, in the instant case, there is no complaint. There is also no police report of facts which would go to constitute an offence or offences against the applicants. The police has already submitted a final report against the applicants in this case. The contention of the learned Counsel for O. P. No. 2 is that even though the Magistrate had summoned the applicants under the second contingency, which is obviously wrong, the case is covered by the third contingency as the learned Magistrate had received information about an offence having been committed by the applicants and therefore he was well within his right to summon the applicants. The Magistrate was said to have received information from the papers submitted by the police including the statements of the witnesses recorded u/s 161 Code of Criminal Procedure and also the statement of Durgavati Devi recorded u/s 164 Code of Criminal Procedure. In my opinion, information gathered from the papers furnished by the police is not tantamount to information received from any person other than a police officer. The information received, should be from a source independent of the police. In the case before us, the Magistrate had not received information from any source unconnected with the police. That being so, he was not competent to take cognizance of the offence against the applicants under contingency No. 3 also. The order passed by the Magistrate summoning the applicants is, therefore, without jurisdiction and must be quashed.

In the result, I allow this application and quash the order dated 8-8-1977 summoning the applicants under Sections 363, 366, 368, 344 and 376 IPC. It will, however, be open to Subedar Singh to file a complaint against the applicants if otherwise legally permissible.