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1994 DIGILAW 548 (ALL)

KRISHANA KANT LAL v. STATE OF UP

1994-08-23

C.A.RAHIM

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C. A. RAHIM, J. ( 1 ) THIS is a revision as application filed by accused-revisionist, who was summoned under section 409 I. P. C. by order dated 15. 8. 1994 challenging it on the ground that the learned Magistrate acted without jurisdiction. It has been stated that he committed an error by summoning the accused after final report was filed by the police and a protest petition was filed by the complainant thereafter. Learned counsel appearing for the revisionist has submitted that the learned Magistrate had no power to recall the documents after receipt of the charge-sheet and thereby allowed the complainant to fill up the lacuna. It is also submitted that he had no power under the Code of Criminal Procedure to call the complainant to produce documents at that stage, when the complainant did not produced those documents during investigation though several requests were made by the police authority. According to him he must have accepted the final report in the absence of any protest petition. He has placed reliance on the decision reported in Persu Ram and others v. State and the Case of Shesh Nath Chaubey v. State. The ratio of these decisions is that after filing the final report if the Magistrate wants to proceed he should have received information from other sources unconnected with the police and that the learned Magistrate is not competent to take cognizance of the offence unless that condition is satisfied. There is no dispute in that regard, Learned counsel for the revisionist wanted the impress that the learned Magistrate was wrong in asking the complainant to produce the documents. In that premises I find that these decisions are of no importance. ( 2 ) FINAL report reached before the court on 3. 11. 1992 and on 13. 4. 1994 the case was heard. On 27. 4. 1994 some documents were produced by the complainant. In that order-sheet it appears that those documents were produced on call. Copy of the order-sheet dated 13. 4. 1994 was not enclosed nor any averments was made as to the contents of the said order. So it is not possible to assess what was the order of that date whether the documents was called for suo moto or an application filed by the complainant, paragraph 8 of the affidavit is silent about the contents of the order dated 13. 4. 1994. So it is not possible to assess what was the order of that date whether the documents was called for suo moto or an application filed by the complainant, paragraph 8 of the affidavit is silent about the contents of the order dated 13. 4. 1994. ( 3 ) THE contention of the learned counsel for the revisionist is that the learned Magistrate cannot ask the complainant to file document suo moto. If the said proposition is considered to be correct one even then I do not find any irregularity or illegality in the order. A Magistrate has power under section 190 (1) (c) Cr. P. C. to take cognizance. It also includes that it has power to take cognizance upon the information received from any person other than the police office. ( 4 ) EXERCISING powers under section 190 (1) (c) Cr. P. C. the magistrate can act suo moto to meet the ends of justice. It cannot be argued that when the documents were asked for on several occasions and not, produced the magistrate has no power to call for it to assess the bona fide of the final report. The bona fide of the request made by the police is found to be take as it appears that those documents were proceeded by the complainant before the magistrate in no time. The accused revisionist could gather information about the number of times and in details the requests made by the police officer but did not tell whether the letters were actually dispatched or received by the complainant. In these circumstances I do not feel that the magistrate has committed any irregularity or illegality by calling for the document from the complainant, who is the Head Master of an institution. The allegation was that defalcation was made by the accused-revisionist with the funds of the school. ( 5 ) THE word upon information received from any person is a wider terni and it does not confine; to any lodging of the protest petition by the complainant and then to act. In that case it would come under sub-section (1) (a) of section 190 Cr. P. C. and not under sub-section (1) (c) of section 190 Cr. P. C. on which the learned Magistrate acted. The courts power under section 190 (1) (c), Cr. In that case it would come under sub-section (1) (a) of section 190 Cr. P. C. and not under sub-section (1) (c) of section 190 Cr. P. C. on which the learned Magistrate acted. The courts power under section 190 (1) (c), Cr. P. C. docs not depend upon the acts or omissions of the police bona fide or mala fide or in the complainants desire. It is an absurd proposition that the court has to look through the small hole created by the police or the complainant and it be soon fled. Under that section the court can act on his own knowledge or upon the information received from any other sources and those information can also be at his own motion. I do not find any merit in the submission and hence the revision is dismissed. Petition dismissed. .