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2019 DIGILAW 1899 (ALL)

Vivek Kumar Jain v. State of U. P.

2019-08-06

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : KARUNA NAND BAJPAYEE, J. 1. Sri Syed Imran Ibrahim and Sri Anurag Vajpayee, Advocates have jointly filed vakalatnama on behalf of the opposite party no. 2 today in Court, which has been taken on record. 2. This application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned summoning order dated 13.5.2019 passed by the learned A.C.J.M., Court No. 10, Meerut, in Misc. Case No. 2448 of 2018, Rabish Vats vs. Anil and others, under Sections 420, 467, 468, 471, 120B I.P.C., P.S.- Jani, District- Meerut, pending in the court of A.C.J.M., Court No. 10, Meerut. 3. Heard learned counsel for the applicant. 4. Submissions raised by the applicant's counsel are precise and focused. It has been submitted that the impugned order suffers from a patent error inasmuch as while the Presiding Officer was dealing with the question about the validity of filing the final report, it has not only looked into the protest petition and several documents annexed along with it but has also placed substantial reliance upon them. While discussing the inappropriateness of submission of final report significant references have been made to the documents which are extraneous to the case diary. Submission is that in such a situation the cognizance in the matter ought to have been taken as a complaint case. If in the opinion of the court the material was such on the basis of which cognizance could have been taken and the accused could have been summoned the corresponding procedure in that regard ought to have been adopted. What has been done by the court below is that despite the fact that it has placed substantial reliance upon the extraneous material it has still chosen to proceed in the matter as a state case and for that reason alone, if not for any other, the impugned order cannot be sustained and deserves its quashing. 5. Heard learned A.G.A. and learned counsel appearing for the opposite party no. 2. 6. Learned counsel appearing for the opposite party no. 2 has submitted that though the references have been made in the impugned order to the documents submitted along with the protest petition but the court has also adverted its mind to the material contained in the case diary and the references to that effect have also been made in the impugned order. 2 has submitted that though the references have been made in the impugned order to the documents submitted along with the protest petition but the court has also adverted its mind to the material contained in the case diary and the references to that effect have also been made in the impugned order. Therefore, it cannot be said that the cognizance in the matter is exclusively based on extraneous material and it is quite possible that the court was satisfied even on the material contained in the case diary to justify cognizance in the matter and for summoning of the accused thereupon. Counsel has tried to draw the attention of the Court to the observations made by the court below in the impugned order wherein it has been observed that the court has not only perused the protest petition but has also perused the police papers and the case diary. 7. I have considered the rival submissions raised at the bar and also perused the impugned order and the record of the case in the light of the same. 8. The impugned order as has been passed by the court below does not appear to be very happily worded. The summoning of the accused has been done not without placing reliance on the material which does not find place in the case diary and is quite outside the case diary. In fact, more references have been made in the impugned order to the extraneous material which is not part of the case diary. No doubt when the court passes order it is not estopped from discussing all material before it and there is nothing wrong about it. But the impugned order does not show as to whether eventually the cognizance has been taken exclusively on the basis of the material contained in the case diary or not, nor does it make clear whether it could have been taken even without the aid of the extraneous material. The concerned Magistrate ought to have been clear in his mind and ought to have passed the order with clarity and he should also have clarified unambiguously on what basis and on which material the cognizance has been taken or based upon. That would have been a better way to guide and decide as to what kind of procedure is to be adopted in the case. That would have been a better way to guide and decide as to what kind of procedure is to be adopted in the case. Obviously if the cognizance in the matter could not have been taken without substantially relying upon the extraneous material furnished by the complainant, the procedure of a complaint case should have come into play. At any rate, in the considered opinion of this Court it is rather difficult to decipher from the impugned order as to what is the precise material on the basis of which the cognizance in the case has been taken. The order is such which may be said of being capable to give rise to duel inferences. The impugned order therefore deserves its quashing. 9. Accordingly the impugned order stands quashed. 10. The application stands allowed. 11. The Magistrate concerned shall once again pass a reasoned order and shall look into the case diary with a view to find out whether the material contained in the case diary, in his opinion, is sufficient to take cognizance in the matter and to justify the summoning of the accused or not. If he finds that the material contained in the case diary is capable of justifying cognizance in the matter and which sufficiently indicates the complicity of the accused, it shall proceed to pass appropriate orders in accordance with law adopting the prescribed procedure of a state case. If in the opinion of the Magistrate, he finds that the material contained in the case diary is deficient and the cognizance in the matter cannot be taken on that basis and the accused cannot be summoned unless extraneous material furnished by the complainant at the time of filing of the protest petition is considered, it may proceed to pass the orders in that light adopting the corresponding right procedure as prescribed under law in view of the observations made herein above.