MOHD YUSUF Vs. STATE OF U P

JUDGEMENT

(1.) R. K. Rastogi, J. This application under Section 482, Cr. P. C. has been filed by the applicants for quashing the summoning order dated 30-6-2006 passed by the Judicial Magistrate-I, Allahabad in Case No. 1830 of 2006, State v. Mohd. Yusuf, Case Crime No. 62365050021/05 under Sections 406, 420, I. P. C. District Allahabad.

(2.) THE facts relevant for disposal of this application are that on 18-3-2005 Sri Akhtar Ali O. P. No. 2, lodged the F. I. R. against the accused Mohd. Yusuf, Mohd. Gaffar and Mohd. Wahid, under Sections 406, 420, IPC. On that report, the police registered case crime No. 21 of 2005, against the accused persons and after investigation, I. O. submitted a final report in the case on 14-4- 2005. THE O. P. No. 2 filed a protest petition against that final report. He filed his own affidavit and affidavits of Sri Giriza Shankar Upadhayay, Abdul Gani and Imtiyaz Ahmad in support of his protest petition.

(3.) IN this connection, it is to be seen that a case can proceed as State case after rejection of the final report, if there is evidence against the accused in the case diary. IN the present case the learned Magistrate himself pointed out that only the complainant and Giriza Shankar had supported the prosecution case, and the statements of the other witnesses named in FIR had not been recorded by the I. O. and he did not examine the documents used for Dubai visit (i. e. passport and visa ). It was further observed that the I. O. had not properly investigated the case and had also violated directions to the C. O. Under these circumstances, it is clear that the I. O. had not properly investigated the case. Two alternatives are open to the learned Magistrate. IN such a case, he can direct the I. O. for further investigation and pass suitable order in the matter after receiving the report on further investigation. But in that case the accused could not be summoned on the basis of insufficient evidence against the accused in the case diary, nor any order could be passed for further proceeding with the case unless sufficient evidence was produced before the Court. The other alternative before the Magistrate was to summon the accused after rejecting the final report on the basis of statements of witnesses filed by the complainant in the shape of affidavits. It is to be seen that in this case the complainant filed his own affidavit and affidavits of Giriza Shankar Upadhayay, Abdul Gani and Imtiyaz Ahmad. If the Magistrate was satisfied with those affidavits, he could take cognizance, but in that case, the case could proceed as a complaint case and not as the State case. Since the learned Magistrate has passed an order for summoning the accused on the basis of insufficient evidence in the case diary holding that proper investigation was not done the orders for summoning the accused and treating it as State case cannot be sustained. The same are liable to be set aside.