MANOJ KUMAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) SAROJ Bala, J. This criminal revision is directed against the order dated 14-8-2001 passed by the Judicial Magistrate II, Sant Ravidas Nagar Bhadohi at Gyanpur whereby summoning the revisionists on the basis of protest petition filed against the final report.

(2.) THE facts giving rise to the revision are these: An application under Section 156 (3) Cr. P. C. was moved by the opposite party No. 2 for registration and investigation with the allegations that on 27-2-2001 at 3. 30 p. m. the revisionists surrounded the opposite party No. 2 on the way and subjected him to assault by wielding of hockey, lathi and sticks. THE revisionist Vijay Bahadur Singh opened fire from gun but the opposite party No. 2 had a narrow escape. THE revisionist Manoj Kumar Singh mounted assault on the head of the opposite party No. 2 by giving hockey blow. On hearing the outcries, the witness Sahab Singh came forward to save the opposite party but he was also subjected to assault. THE application under Section 156 (3) was rejected by the Judicial Magistrate. THE Opposite Party preferred a revision before the Sessions Judge which was allowed and the matter was remanded for decision afresh. After re-considering the matter the Judicial Magistrate directed registration and investigation. THE First Information Report was registered as case Crime No. 19-A of 2001 under Sections 147, 148, 149, 307, 394, IPC, Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi. After investigation final report was submitted on 3-8-2001. Notice was issued to the opposite party No. 2. THE Opposite party No. 2 filed protest petition against the final report supported with affidavits alleging that the Investigating Officer had not recorded the statements of witnesses Sukhram Harijan and others and interrogated such persons who were not named as witness in the FIR. THE cognizance was taken by the Magistrate under Section 190 (1) (b) of the Code of Criminal Procedure (hereinafter referred to as the Code ).

(3.) THE learned Counsel for the revisionists placing reliance on the decision in Harikesh and Ors. v. State of U. P. and Ors. , 2001 (43) ACC 720, argued that the cognizance having been taken on the basis of protest petition and accompanying affidavits, the procedure prescribed under Section 190 (1) (a) should have been adopted. THE Magistrate while taking cognizance under Section 190 (1) (b) of the Code had no jurisdiction to consider the extraneous material or evidence in addition to the material collected by the Investigating Officer.