FAUJI Vs. STATE OF U P

JUDGEMENT

(1.) The applicants have been summoned under Sections 147, 148, 32.5, 324 and 307 Indian Penal Code as per order dated 19.2.1983, Annexure 4. It would appear that the Police submitted a final report in this case. A protest petition was preferred and the Magistrate then passed the following order: Perused case diaries, application and other papers. In the cross case the accused have been challaned. Prima facie offences under Section 147/ 148/31.4/323/307 Indian Penal Code are made out against accused Qasim Fausi, Sukha Asghar, Mohd. Amin, Kamil, Hayat, Liyaqat, Mishtaq, Aalim, Amir Ahmad, Hanif, Shaukat, Popat Jamil, Shakil Ahmad and Zafar and there are sufficient grounds to proceed against them. Issue warrant of arrest against them. Fix 24.3.1983. Sd. M. Siddiqi, J.M.I. 19.2.1983. 'I It is urged that the order is illegal and without jurisdiction and is a non speaking order and was based mechanically and the Magistrate was bound to follow the procedure for a complaint case which the Magistrate has failed to do and there was no provisions for issuing warrant and the Magistrate could only direct a further investigation and police was right in submitting a final report. It was also stated that there is a cross case initiated at the instance of some of the opposite parties with a cross version in which charge sheet was submitted.

(2.) This Court cannot enter into the question of fact which are to be considered by the Magistrate. Simply because there is a cross case also any prosecution would not be barred. It is for the court to decide during trial the merits of cross cases. 1 he main argument advanced is that the protest petition falls within the definition of Section 2(d) of the Criminal Procedure Code and on the authority of the case of Abhinandan Jha v. Dinesh Misra the procedure under Sections 200 and 202 Criminal Procedure Code should have been followed. It is further urged that in the case reported in 1963 S.C. 1430 also the same view was taken. A number of pronouncements of other High Courts were cited but this Court will be guided by the Supreme Court pronouncement as well as the earlier pronouncements of this Court.

(3.) A doubt was created concerning the pronouncement in Abhinandan Jhas case (supra) whether the cognizance taken by the Magistrate falls under Section 190(1)(c) Criminal Procedure Code. This position has been clarified in the case of H. S. Bains v. State laying down that actuall the case of Abhinandan Jha (supra) refers to sub-clause (b) and not sub clause (c) of Section 19 Criminal Procedure Code and when a court takes cognizance on a police report, even if it is final report cognizance will be under Section 190(b) Criminal Procedure Code and the procedure for police Chalani cases is to be observed. This is latest pronouncement dealing with the matter.