BALRAM SINGH Vs. HARISH CHANDRA SRIVASTAVA

JUDGEMENT

(1.) (a) Criminal Procedure Code, 1973, Sections 482 and 190 (1) (c)-Penal Code, 1860, Section 338-Quashing of criminal proceedings-Accused sum moned on protest petition disagreeing within final report without show-cause- Petition dismissed-Cognizance by Magistrate under Section 190 (1) (c) after taking into consideration the final report, protest petition and other documents__held, competent Magistrate need not any special empowerment for taking cognizance in the matter under Section 190 (1) (c) of the Code. A perusal of the order passed by the learned Magistrate shows that he took into consideration the final report, case diary, the protest petition, the affidavits, the photos of the child, the prescription, admission receipt, reports of Dr. A. K. Gupta, Dr. A. K. Katiyar, Dr. Satya Nand etc. the found that prima facie it appeared that the petitioner had not done the bandaging and plastering correctly. Due to their being very tight, the fingers and the claw had to be amputated, making the child handicapped. The occurrence of gangrene was found to be the direct result of the negligent plastering. Taking all these facts into consideration, the learned Magistrate rejected the final report and took cognizance of fhe offence. He summoned the accused under Section 338, I. P. C. fixing 5-1-1994 for appearance of the petitioner in his Court. A perusal of the order passed by the learned Magistrate clearly shows that the learned Magistrate proposed to proceed under Section 190 (1 ) (c)-----upon information received from any person other than police officer. . . . . . that such offence has been cornm,itted. Admittedly, he is a Magistrate 1st Class and he does not need any special empowerment for taking cogni zance in the matter under Section 190 (1 ) (c) of the Cr. P. C. It is again admitted that he had territorial jurisdiction to act in respect of this matter. Thus it is a case where there is no question of lack of inherent jurisdiction. The materials available before the learned Magistrate were prima facie sufficient for any reasonable and prudent man to hold that a prima facie case had been made out enablingjhim to take cognizance in the matter. [paras 7, 8 and 9] (b) Criminal Procedure Code, 1973, Sections 191 and 482-Enquiry and trial by another Magistrate-Right of accused to be informed by the Magistrate taking cognizance under Section 190 (1) (c) not complied- High Court, directed the transfer of the case to any other Magistrate. Under Section 191, Cr. P. C. , it has been provided that where a Magis trate takes cognizance of an offence under clause (c) of sub-section (1) of Section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magis trate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. [para 10] What should be the procedure after the case is transferred to some other Magistrate, is a matter to be decided by him. In this case, I think that since the cognizance has been taken by a competent Magistrate under Section 190 (1) (c) of the Cr. P. C. , this Court need not interfere in this matter. However, in the interest of justice, I deem it proper to direct the Chief Metropolitan Magistrate, Kanpurjnagar to transfer this case from the Court of A. C. M. M. IIIrd to some other A. C. M. M. within his jurisdiction. [para 11] .