PYARE LAL Vs. STATE OF U P

JUDGEMENT

(1.) C. A. Rahim, J. This application under Section 482, Cr. P. C. has been filed against the order dated 1-6-1981 passed by the learned M. M. Sisamau of Kanpur City in Criminal Case No. 381 of 1981 with a prayer to quash the proceeding against the applicant. The contention is that in the charge-sheet the applicant was figured as a witness. Against other accused persons charge was framed and thereafter on an application filed by the complainant learned Magistrate issued process against the applicant after, considering the case diary. Learned Counsel has submitted that the said order is illegal as no evidence, as envisaged under Section 319, Cr. P. C. was taken by the learned Magistrate. Learned A. G. A. has submitted that the learned Magistrate is empowered to issue process against the accused if he finds material against him in the case diary even when he was not sent up by the Investigating Officer in that case.

(2.) IT is true that the learned Magistrate has the power to accept the charge-sheet in toto or to reject it and order for further investigation and to act according to the material available in the charge-sheet and in that process the learned Magistrate is not bound to act only on the finding of the Police. But in the instant case that stage was over. Charge has been framed. Provisions of Section 319, Cr. PC. now comes into play which clearly speaks that the said power can be exercised by the learned Magistrate after taking the evidence. So the action taken by the learned Magistrate in issuing process against the applicant after going through the case diary is not a correct exposition of law as laid down in the Criminal Procedure Code.