ANURAG RASTOGI Vs. STATE OF U P

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Allahabad High Court. The High Court by the impugned order partly accepted the challenge made by the respondent No.1, the informant, in Crime No.53 of 2005.

(3.) Factual background in a nutshell is as follows: On the basis of the information given by respondent No.2 case of alleged commission of offence punishable under Sections 498-A, 323, 504 of the Indian Penal Code, 1860 (in short the IPC) read with Sections 3 and 4 of the Dowry Prohibition Act, 1961 (in short Dowry Act) was registered. After investigation charge sheet was filed against the appellants. The Magistrate took cognizance of the offences and issued summons to the accused persons. The offences are triable by Magistrate, First Class. The informant filed an application before the concerned Magistrate to the effect that on the basis of evidence collected by the investigating officer, cognizance ought to have been taken for offence punishable under Sections 406 and 307 IPC. The Magistrate was of the view that after evidence is adduced, commission of the offence punishable under Sections 406 and 307 IPC is made out, then the prayer of the informant could be considered. Respondent No.2 filed a petition before the High Court stating that the materials collected by the investigating officer and contained in the case diary itself justified trial under Sections 307 and 406 IPC. It was pointed out that by addition of these sections, the case should be tried by the Court of Session while on the basis of cognizance taken the case is triable by the Magistrate. The High Court was of the view that the Magistrate had not applied his mind to the merits of the points raised by the informant. The Magistrate was not bound by the description in the police report and while taking cognizance it could make variation if there was sufficient material before him. The High Court felt that when the informant claimed that the materials contained in the case diary indicated commission of certain offences which make it case triable exclusively by the Court of Sessions, the Magistrate should at the time of framing charges consider and decide points so that unnecessary proceedings are not taken up if the case is to ultimately go before the Sessions Judge. After having so held the High Court held that proper stage is the stage of framing charge. Direction was given to consider and decide the matter afresh.