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Allahabad High Court · body

2009 DIGILAW 2728 (ALL)

MITRA SEN YADAV v. STATE OF U. P.

2009-07-30

S.C.CHAURASIA

body2009
JUDGMENT S.C. CHAURASIA, J.-Heard the learned Counsel for the petitioners, learned A.G.A. and perused the record. 2. This petition under section 482, Cr.P.C., has been filed with the prayer that the impugned orders dated 28.6.2008 and 23.10.2007, passed by the learned Sessions Judge, Faizabad, and learned Judicial Magistrate-II, Faizabad, respectively, may be quashed. The learned Counsel for the petitioners has submitted that the impugned orders dated 28.6.2007 and 23.10.2007, are illegal on the face of it and hence, the same deserve to be quashed. His contention is that the learned Magistrate, was not empowered to take' cognizance under section 190(l)(b), Cr.P.C. on the basis of the protest petition and evidence/documents produced therewith. 3. On the basis of the F.I.R. lodged against the accused, the investigation was conducted. After completion of the investigation, the final report was submitted. In response to the notice issued by the concerned Court, the complainant filed the protest petition• and also filed certain documents. The impugned order dated 23.10.2007, indicates that the final report No. 33 of 2003 was rejected and the cognizance under section 190(1)(b), Cr.P.C;., was taken on the basis of the protest petition and the documents filed therewith, and the accused/petitioners were summoned under sections 419, 420, 467,.468,471 and 409, I.P.C. The revision against the said order was also dismissed vide judgment and order dated 28.6.2008 passed by the learned Sessions Judge, Faizabad. 4. It has not been disputed by the learned A.G.A. that the cognizance under section 190(1)(b) of the Cr.P.C, can be taken upon the police report only, and on the basis of the protest petition and the documents filed therewith, no cognizance under section 190(1)(b), Cr.P.C. can be taken. The learned Magistrate has taken cognizance under section 190(1)(b), Cr.P.C., on the basis of the protest petition and the documents filed therewith, which was not permissible. Thus, he has committed illegality in taking cognizance on the basis of the said material. The learned Sessions Judge, has also not considered the matter property, and has dismissed the revision filed against the said order illegally. Since, the cognizance under section 190(1)(b), Cr.P.C., has not been taken in accordance with law, the impugned orders cannot be sustained. Consequently, the impugned orders deserve to be quashed. It is expedient in the interest of justice that the matter may be remanded to the concerned Court for passing an appropriate order afresh in accordance with law. 5. Since, the cognizance under section 190(1)(b), Cr.P.C., has not been taken in accordance with law, the impugned orders cannot be sustained. Consequently, the impugned orders deserve to be quashed. It is expedient in the interest of justice that the matter may be remanded to the concerned Court for passing an appropriate order afresh in accordance with law. 5. In view of the aforesaid discussions, I am of the view that this petition deserves to be and is allowed accordingly. The impugned orders dated 28.6.2008 and 23.10.2007, passed by the learned Sessions Judge, Faizabad, and the learned Judicial Magistrate-II, Faizabad, respectively, are hereby quashed. The matter is remanded to the Court of Judicial Magistrate-II, Faizabad, for passing an appropriate order afresh in accordance with law, on the final report/protest petition, after providing opportunity of hearing, expeditiously and preferably within a period of three months from the date a certified copy of this order is produced in the said Court. Petition Allowed.