PARAS TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS Criminal revision has been preferred by the revisionists/accused against the order dated 6.2.2004 passed by Civil Judge (Junior Division) Chakiya district Chandauli in Criminal case No. 262 of 2004, State of U.P. v. Paras Tiwari and others, under sec ­tions 457, 380 IPC, Police station Shahabad by which the learned Magistrate has re ­jected the application of the revisionist moved under section 245(2) Cr.P.C for their discharge.

(2.) BRIEFLY stated facts are that on the basis of written report dated 22.1.2002 of the complainant Devi Prasad Tiwari, a first information/report was registered against the revisionists as Crime No. 10 of 2002 Police station Shahabad under sections 457, 380 IPC. After completion of investigation final report was submitted by the Investigating officer. Later on re -investigation was done and again final report was submitted which was filed before the concerned Magistrate. The complainant filed protest petition dated 13.11.2003 before the Magis ­trate which was registered as complaint and statement under sections 200 and 202 Cr.P.C were recorded by the learned Mag ­istrate and on finding that prima -facie case is made out against the revisionist -accused, learned Magistrate summoned the revision ­ists for the offences under section 457/380 IPC vide order dated 14.6.2003. The revi ­sionists accused appeared before the Mag ­istrate and moved an application under section 245(2) Cr.P.C. for discharging them even before the stage of recording evidence under section 244 Cr.P.C. A perusal of the impugned order shows that the learned Magistrate did not make any comment re ­garding the right of revisionists accused for moving application under section 245(2) Cr.P.C., and after hearing the parties reached to the conclusion that the points which have been raised on behalf of revisionists accused in the said application are such as, can be decided only after taking evidence during trial. The learned magis ­trate was of the view that for summoning the accused on the basis of complaint only this much is to be seen as to whether prima -facie case is made out against the accused for proceeding further with the complaint. Learned Magistrate was also of the view that so far as the question of truth ­fulness of occurrence is concerned, it can only be decided after recording evidence and at the time of giving judgment on the basis of the evidence of the parties. Learned Magistrate was further of the view that while considering the final report out of the options open to the learned Magis ­trate, one of the options is that the protest petition may be treated as complaint and in the present case also the learned Magistrate has treated the protest petition as com ­plaint vide order dated 11.3.2003. In view of this learned Magistrate reached to the conclusion that the grounds taken by the revisionist -accused in their application un ­der section 245(2) Cr.P.C have no merit and the said application is liable to be rejected. Accordingly learned Magistrate rejected the said application of the revisionist - ac ­cused vide the impugned order. Feeling aggrieved the present revision has been filed by the revisionists accused.

(3.) THE first ground taken by the re ­visionists in assailing the impugned order is that the learned Magistrate has commit ­ted material illegality in summoning the revisionists on the protest petition when the police did not find that any such offences have been committed and submitted final report twice after full investigation. It has been submitted by learned Counsel for the revisionists that the learned Magistrate has committed material illegality in treat ­ing the protest petition as complaint and passing the summoning order. To the con ­trary learned Counsel for the com ­plaint/opposite party No. 2 submits that the Magistrate can very well treat the pro ­test petition filed against the final report as complaint and the power of Magistrate to take cognizance on such a complaint is not lost merely because the Magistrate has ac ­cepted the final report submitted by the Police investigating the incident in question on the basis of first information report. Learned Counsel for opposite party No. 2 in this connection has relied upon the case of Kishore Kumar Cyan Chandani v. G.D. Mehrotra and another (AIR 2002 SC 483).