KRISHNA DUTT Vs. STATE

JUDGEMENT

(1.) .This petition under Sec. 482 Code of Criminal Procedure is directed against the order dated May 29, 1981 passed by a Judicial Magistrate at Unnao in Criminal Case No. 545 of 1981 whereby he summoned the Petitioner for having committed an offence under Sec. 302 Indian Penal Code after rejecting the final report submitted by the police and without collecting any further material.

(2.) Notice of the petition has been taken by the learned A. G. A. and Counsel for the parties have been heard.

(3.) A Division Bench of this Court held in Chandra Shekhar v/s. State of U. P. : 1978 A CR 455 that an information contained in the final report submitted by the police or its annexures does not constitute a report as defined by Sec. 2(r), Code of Criminal Procedure. It has also been repeatedly held by this Court in Shesh Nath Chaube v/s. State : 1978 ACR 284, Krishna Kant Tewari v/s. State of U. P., 1980 Allahabad Weekly Cases 513 and Chhotan and Anr. v/s. The State, Cr. Misc. Case No. 124 of 1979D/ -23 -1 -1981 (L.B.) (Alld.), that a Magistrate can not take cognizance under Sec. 190(1)(b) Code of Criminal Procedure upon a final report submitted under Sec. 169 Code of Criminal Procedure even if he does not agree with it. If after disagreeing with final report the Magistrate proposes to proceed in the matter he has to postpone the issuing of process and to enquire into the allegations himself. He can also direct the investigation to be made by a police officer or any other person. On the basis of the rejected final report alone he can not straightway summon the accused. The impugned order shows that in the present case the learned Magistrate summoned the accused straightway on the basis of a rejected final report and did not make any further enquiry either himself, nor got the matter investigated by any police officer or any other agency. That he could not legally do. The impugned order is therefore absolutely illegal and cannot be allowed to stand. I, therefore, allow this petition and set aside the aforesaid order dated May 29, 1981 passed by the learned Magistrate. This order will however not affect the proceedings pending before the learned Magistrate, if any, on the basis of any other charge sheet or complaint. It is also open to the learned Magistrate to enquire into the matter himself if he feels that injustice has been done through the submission of the final report and if he collects any further material and is satisfied on the basis of that material that the cognizance of the offence should be taken and the accused should be summoned he may proceed accordingly. The present order dated May 29, 1981 already referred to above is however erroneous and is set aside. Any proceeding pending on the basis of that order shall stand quashed.