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2016 DIGILAW 2181 (ALL)

Ram Pratap v. State of U. P.

2016-06-10

PANKAJ NAQVI

body2016
JUDGMENT Pankaj Naqvi,J. Heard Sri Manoj Gautam, learned counsel for the applicants and the learned A.G.A. 2. This application under Section 482 Cr.P.C challenges an order dated 29.3.2016, passed by the Addl. Chief Judicial Magistrate, Mahoba in Case No. 25/2016 (Case Crime No.212/2015) (State vs. Khimmu and others), taking cognizance in respect of applicant nos 1 & 2 for offences under Sections 323/504/506 IPC and applicant no. 3 under Sections 354/392/323/504/506 IPC and 8 of the POCSO Act. 3. It is submitted by learned counsel for the applicants that initially NCR No.62/2015, under Sections 323/504/506 IPC in respect of an occurrence dated 14.9.2015 came to be filed by O.P. No.2 as against the applicants, who were challaned under Section 151 Cr.P.C and released on personal bond. Subsequently after 3 days, an application under Section 156(3) Cr.P.C was filed exaggerating the allegations to constitute an offence under Sections 376/511/392/504/506 IPC and 8 of the POCSO Act, pursuant to which an FIR was registered, in which after investigation, charge-sheet came to be submitted only under Section 504 IPC, but the court below under the order impugned, took cognizance and summoned applicant nos. 1 & 2 under Sections 323/504/506 IPC and applicant no. 3 under Sections 354/392/323/504/506 IPC and 8 of the POCSO Act. It is finally submitted that without rejecting the final report other than Section 504 IPC, cognizance as well as summoning in respect of summoned offences, stands vitiated in law. 4. Learned A.G.A has opposed the submission on the ground that there were no two separate reports as the charge-sheet was filed only under Section 504 IPC, but on available materials, the learned Magistrate was satisfied that offences other than 504 IPC are also made, therefore the Magistrate rightly took cognizance of the same and proceeded to summon the applicants in respect of offences other than Section 504 IPC. 5. The law is well settled that in the event a report under Section 173(2) Cr.P.C is submitted to the Magistrate which being in the nature of an opinion, is not binding upon the learned Magistrate and he on the basis of materials forming part of the case diary, is well vested within his jurisdiction to take cognizance of the appropriate offences from the materials available on record, i.e., forming part of the case diary. Merely because a charge-sheet came to be filed under Section 504 IPC, would not mean that there was a final report in respect of offences other than Section 504 IPC. 6. In so far the allegation that the present proceedings are bad in view of earlier NCR, is an issue which can only be examined at an appropriate stage and the same cannot be the basis for questioning the validity of the impugned order. No other plea is urged. The application is dismissed.