(1.) THE Chief Judicial Magistrate, Etah, disagreeing with a police final report in a case under Section 395/396 IPC summoned the accused by the following order:- "Heard A. P. O. Register case. Affidavits have been filed by P. Ws. Roshan Singh Kishori s/o Pearey Lal in support of the case on 6-6-1979 in the court. Summon all the accused mentioned in the F. I. R. Fix 11-12-1979 for appearance." Sd. B. G. Saxena 26-11-1979. In a revision by the accused the Sessions Judge held that the Magistrate could not have taken cognizance on the basis of the final report as held in Shesh Nath Chaube v. State, 1978 ACrR 284 but could have taken cognizance under Section 190 (1) (c) CrPC on the basis of the two affidavits filed before him. He noted that the public prosecutor had conceded that where cognizance is taken under Section 190 (1) (c) the procedure to be adopted is that provided in a complaint case. On this basis he held that in a case exclusively triable by the court of session the Magistrate had to examine the complainant and all his witnesses as required by Section 200 (2) CrPC before summoning the accused. THErefore, the order was held to be bad in law. THE learned Judge went on to consider the material before the Magistrate on merits. He noted that the persons filing the affidavits while the case was still under investigation were not named in the first information report and were only chance witnesses, but the Magistrate had made no efforts to satisfy himself regarding the truthfulness of these witnesses before acting on their affidavits. Further that the accused were senior citizens and respectable persons and one of them was an Advocate aged about 70 years and an Ex-A D.G.C. (Criminal) and President of the Bar Association. THE other Dr. M. C. Sharma, according to the learned Judge had on 11-8-1979 written to the Chief Judicial Magistrate by way of a third reminder regarding sum of Rs. 60/- due as compensation for professional loss about the doctor's* evidence in that court on 21-7-1979 and this showed that the money was not paid to Dr. Sharma inspite of efforts and "Dr. M. C. Sharma was perfectly justified in believing that he was being harassed by the Chief Judical Magistrate, Etah. THE learned Judge recorded his opinion that Sri B. G. Saxena, Chief Judicial Magistrate, Etah, was not guided wholly by the consideration of justice while recording the order summoning Dr. M. C. Sharma and others by the impugned order. THEre is every likelihood that he used the opportunity which came his way by the first information report in question to harass Dr. M. C. Sharma." Holding that the final report should have been accepted and there was no material on record which may warrant the trial of the accused the Sessions Judge set aside the Magistrate's order. THE complainant has come up in revision against this order.
(2.) THE preliminary objection on behalf of the accused that this private revision against an order of refusal to take cognizance in police challani case should not be entertained is easily disposed of. THE Magistrate had taken the cognizance and in case the Sessions Judge in revision acted beyond his jurisdiction quashing the order it would clearly be a case of a manifest error on a point of law causing miscarriage of justice and this Court would not hesitate to exercise its revisional powers even at the instance of a private party.
(3.) ASSUMING that cognizance was taken under section 190 (1) (c) there is no ground for holding that the procedure to be [followed must be that in a complaint case. Chapter 15 CrPC contains the procedure for complain to Magistrate and in the words of section 200 would apply in case of taking cognizance on complaint. This would obviously not hold good where cognizance is taken under section 190 (1) (c) CrPC. The provisions applicable in case of such cognizance are found in Chapter 16. Section 204 CrPG which speaks of issue of process merely provides that if in the opinion of the Magistrate taking cognizance there is sufficient ground for proceeding he shall issue process of the attendance of the accused as provided in the section. Section 204 (3) CrPC provides that in a proceeding instituted on a complaint a copy of the complaint shall accompany the process. There is the such requirement where cognizance has been taken under section 190 (1) (c). Therefore, in such cases the Magistrate can straightaway issue summonses to the accused under Section 204 (1) CrPC of course it is open to the Magistrate in a particular case to treat a protest petition as a complaint and there is same authority that where the protest petition happens to be by the informant he should do so. The present was not a case of a protest petition or affidavits by the informant nor did the Magistrate choose to treat the some as a complaint and follow the procedure of a complaint case. Now exclusively sessions triable cases of which cognizance is taken otherwise than on a police report are dealt with by section 208 CrPC. The Magistrate has to furnish to the accused copies of the various documents mentioned in that section and then if it appears proper commit the accused to the court of Session for trial under section 209 CrPC. It has nowhere been provided that the procedure applicable to complaint cases in Chapter 15 of the new Code would apply to cases taken cognizance of under section 190 (1) (c). It is not clear how the public prosecutor made this concession before the learned Sessions Judge about the complaint case: procedure being applicable in all cases under section 190 (1) (c) or in this case in [particular. Probably he incorrectly treated this to be a case of a protest petition by the person who lodged the first information report. Whatever the reason may be the assumption even if leased on a concession by the public prosecutor that llhe complaint procedure was applicable in the case of cognizance under Sec. 190 (1) (c) CrPC is incorrect and without any basis in law. The conclusion of the learned Sessions Judge, is, therefore, erroneous and there is no legal defect in the procedure adopted by the Magistrate even if we take it that cognizance was taken under section 190 (1) (c) CrPC.