“Whether after rejection of Final Report cognizance can be taken on the basis of the affidavits and other extraneous material filed by the complainant in support of protest petition without following the procedure laid down under sections 200 and 202 of the Code of Criminal Procedure (in short, ‘the Cr.P.C’)” is the main point that falls for consideration in this application under section 482 Cr.P.C, by means of which the applicant Vimlesh has invoked inherent jurisdiction of this Court for setting-aside the order dated 15.06.2009 passed by the Judicial Magistrate, Court No. 1, Kanpur Dehat in Criminal Misc. Application No. 278 of 2008 (Indra v. State) arising out of case crime no. 215 of 2008 under section 436 IPC, P.S Rasoolabad, District Kanpur Dehat.

2. By the impugned order, the applicant named above has been summoned to face the trial under section 436 IPC after rejecting final report.

3. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this application, in brief, are that an FIR was lodged on 02.06.2008 by the complainant Inder s/o Sri Sardar Beria (opposite party No. 2 herein) at P.S Rasoolabad, District Kanpur Dehat, where a case under section 436 IPC was registered at crime no. 215 of 2008 against Vimlesh (applicant herein). After investigation, final report was submitted by the investigating officer. On getting notice of the final report, the complainant Inder filed protest petition, in support whereof, certain affidavits were also filed. The learned Magistrate vide impugned order summoned the applicant to face the trial after rejecting the final report. Hence, the applicant has invoked the inherent jurisdiction of this court to quash the impugned summoning order.

4. I have heard Shri Dilip Kumar Mishra, Advocate appearing for the applicant and AGA for the State.

5. The only submission made by learned counsel for the applicant was that the impugned summoning order is wholly illegal, as the applicant has been summoned by the learned magistrate on the basis of the affidavits, which have been filed by the complainant in support of the protest petition against final report. The contention of the learned counsel was that cognizance under section 190 (1) (b) Cr.P.C on the final report can be taken only, if there is material in the case diary to proceed against the accused persons and for this purpose extraneous material like affidavits filed by the complainant with the protest petition cannot be considered. It was also submitted by learned counsel that if material in the case diary is not sufficient to take cognizance against the accused persons and if any protest petition has been filed by the complainant against final report, then in that case, the procedure laid down under Chapter XV Cr.P.C has to be followed by the magistrate after treating the protest petition as complaint. For these submissions, reliance has been placed on the observations made by Division Bench of this Court in the case of Pakhando & others v. State of U.P & another 2001 (43) ACC 1096.

6. The learned AGA, on the other hand, submitted that the impugned order does not suffer from any illegality, as on filing of the protest petition against the final report with affidavits, cognizance can be taken by the magistrate under section 190 (1) (b) Cr.P.C, if the magistrate is satisfied that there is sufficient ground to proceed and since in the present case on the basis of the affidavits filed by the complainant in support of his protest petition against final report, prima facie case is made out against the applicant, hence the learned magistrate was fully justified in taking cognizance against the applicant.

7. Having given my thoughtful consideration to the rival submissions made by the learned counsel for the parties, I find force in the submission of the learned counsel for the applicant that cognizance under Section 190(1)(b) Cr.P.C cannot be taken on the basis of the extraneous material like affidavits filed in support of the protest petition against final report and if the material in the case diary is not sufficient for summoning the accused person, then the procedure laid down in Chapter XV Cr. P.C has to be followed by the magistrate after treating the protest petition as complaint, as held by the Division Bench of this Court in Pakhando case (supra).

8. In the present case, the record shows that certain affidavits were filed by the complainant with his protest petition which he has filed against final report. The learned Magistrate on the basis of that protest petition and affidavits summoned the applicant to face the trial under section 436 IPC, which in my opinion is not permissible in law, as cognizance under Section 190(1)(b) Cr.P.C after rejecting the final report can not be taken on the basis of the extraneous material like affidavits, which are filed in support of the protest petition against final report and if the material in the case diary is not sufficient to take cognizance and summon the accused to face the trial, then in such case the protest petition should be registered as complaint, taking cognizance under section 190(1)(a) Cr.P.C and after following the procedure laid down in Chapter XV Cr.P.C, order under section 203 or 204 Cr.P.C should be passed.

9. This court has held in the case of Mohammad Yusuf & others v. State of U.P and another 2008 (1) ACR 68 that the magistrate cannot take cognizance under section 190 (1) (b) Cr.P.C on the basis of the protest petition and affidavits filed in support thereof without following the procedure laid down under Chapter XV Cr.P.C the following observations made in para 11 are worth mentioning :-

“Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e Protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C the impugned order is vitiated.”

10.The Division Bench of this Court in the case of Pakhando and others v. State of U.P and another (2001(43) ACC 1096) had the occasion to consider the matter regarding the procedure to be adopted by the Magistrate/Court on submission of the final report by the police. Having taken various authorities into consideration, the following observations have been made by the Division Bench in para 15 of the judgement at page 1100 of the report:-

“From the aforesaid decisions, it is thus clear that where the Magistrate receives final report, the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:-

(I). He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant’ or

(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C and thereafter decide whether complaint should be dismissed or process should be issued.”

11. As would appear from the observations made by this Court in Mohammad Yusuf case (supra), cognizance under section 190 (1) (b) Cr.P.C cannot be taken on the basis of the affidavits filed in support of the protest petition against final report and if material in the case diary is not sufficient to take cognizance, then the procedure laid down under Chapter XV Cr.P.C should be followed by the magistrate after treating the protest petition as complaint, as held by Division Bench of this Court in Pakhando case (supra). Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused to face the trial, then after taking cognizance under section 190(1)(a) Cr.P.C, the protest petition filed by the complainant against the final report ought to have been registered as complaint and following the procedure laid down under Section 200 and 202 Cr.P.C, the learned magistrate should have decided whether the complaint should be dismissed or process should be issued. If after taking evidence under Section 200 and 202 Cr.P.C, the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report, without following the procedure laid down under Chapter XV Cr.P.C, if the material in the case diary is not sufficient to take cognizance.

12. In view of the observations made herein-above, the impugned summoning order cannot be sustained, as cognizance has been taken by the learned magistrate merely on the basis of the affidavits filed by the complainant in support of the protest petition against final report. Therefore, it would be in the interest of justice to send the case back to the court below for passing fresh order on the protest petition filed by the complainant against the final report.

13. Consequently, the application under section 482 Cr.P.C is allowed. Setting aside the impugned summoning order dated 15.06.2009 and quashing further proceedings of Criminal Misc. Application No. 278 of 2008 (Inder v. State), pending in the court of Judicial Magistrate, Court No. 1, Kanpur Dehat, the learned magistrate is directed to pass fresh order on the protest petition filed by the complainant against final report, in case crime No. 215 of 2008 of P.S Rasoolabad, District Kanpur Dehat, treating the same as complaint and following the procedure laid down under Section 200 and 202 Cr.P.C

Order Date :- 16th March, 2010

Yachna/-