JARRAR HUSSAIN Vs. STATE OF U.P.

JUDGEMENT

(1.) This revision is directed against order dated 23rd Oct., 1981 passed by Chief Judicial Magistrate Jaunpur.

(2.) Facts are that on 16th Sept., 1980 revisionist lodged a written First Information Report alleging incident of the same day constituting offences under Sections 452/336/337/323 I.P.C. There were two investigations bringing on record inconsistent statements of witnesses. Ultimately, a final report was filed and it was said that offence under Sec. 323 I.P.C. only made out which was a non- cognizahle offence. Revisionist filed protest petition. At that very stage accused of the case appeared. The learned Magistrate heard parties counsel. He did not prefer to call witnesses and make fur(he; enquiry. He rejected the protest petition and directed the complainant to file complaint.

(3.) The procedure adopted by the Magistrate was not according to law unless the accused are summoned in a case they have no locus standi to contest the case. Even if they appear with a counsel, they ,and their counsel should only watch the proceedings but are not entitled to address the court unless cognizance is taken and summoning order is passed. Secondly, when the statement of the witnesses were inconsistent and the Magistrate felt the need of witnesses being produced before him for further statement he could have proceeded with further enquiry himself. He could have treated the protest petition as complaint and could have proceeded thereafter with the case as complaint case. It is obvious that the procedure adopted by the learned Magistrate is quite illegal. His order cannot e sustained.