MAHENDRA PAL SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard Mr.R.P.Mishra, learned counsel for the petitioners and Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.

(2.) So far as Section 190 (1) (c) of the Code of Criminal Procedure, is concerned, under that very provision? the learned Magistrate is empowered to take cognizance of an offence upon information received from any person other than the police officer or upon his own knowledge that such offence has been committed.? Here in the present case the complainant himself came forward and moved an application, not the other person nor the learned Magistrate has taken cognization upon his own knowledge, therefore, he submits that the power exercised by him under Section 190 (1)(c), of the Code of Criminal Procedure, suffers from jurisdictional error. " Moreover, on entertaining the application as complaint, the learned Magistrate was under obligation to call upon the complainant to produce the witnesses, upon whom he relied upon, but he failed to do so." It is not in dispute that the complainant produced earlier a list of two witnesses and subsequently 26 witnesses, but he produced only five witness for examination, on this count also he submits that the learned Magistrate has violated the procedure prescribed therefor, therefore, the summoning order suffers from jurisdictional error and deserves to be quashed.

(3.) The petitioners have brought on record the order sheet indicating the orders passed on different dates, which establishes that the learned Magistrate is proceeding with the said application, as complaint case. "Had it been the protest application, it would have, similarly, been taken as a complaint, therefore, I am of the view that the learned Magistrate is proceeding with the application as a complaint case, therefore, there is no error in the proceedings.? It is observed that the said application shall be treated as a protest application in the said case and the proceeding shall not be treated as separate proceeding, but it shall be under the proceeding of the main case."