JUMMAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By present revision under S.397/401 of the Code of Criminal Procedure, 1973 (for short the Code), the order dated 25th Jan. 1986 passed by Chief Judicial Magistrate, Mirzapur issuing process against the applicants in Crime No.107 of 1985 under Section 302/34, I.P.C. is sought to be quashed.

(2.) The short account of the events, relevant for the disposal of this revision may be indicated. One Smt. Naimun (complainant) opposite party No.2 lodged a F.I.R. on 7th May, 1985 at 4 p.m. at P.S. Adalat Distt., Mirzapur stating that on the same day at about 2 p.m. Km. Parana daughter of complainant, went to the bank of river Ganga but failed to come back. Her sister Km. Hamida who went to trace her out, stated on return that her sister (Km. Parmia) was being drowned by Jumman and Islam, (the applicants 1 and 2). Sardar and Dilbahar went on the spot and saw the accused running away after drowning Km. Parmia who was taken out of water and was found dead. Final report was submitted. The complainant, opposite party filed a protest petition in the Court of Chief Judicial Magistrate, Mirzapur and to prove the occurrence, and some affidavits were filed by the informant. The Chief Judicial Magistrate took cognizance, purporting to be under S.190, and issued process. This is impugned order.

(3.) Heard learned counsel for the parties. Counsel for the applicant urged that after final report was submitted if any protest petition or complaint was filed in a case exclusively triable by the Court of Session before taking cognizance and issuing process, the Magistrate must follow the procedure provided in Second Proviso to S.202 by directing the complainant to procure all the prosecution witnesses. On the basis of affidavits cognizance cannot be taken. Reliance was placed on Ahibaran Singh v. State of U. P., 1983 All Cri C 236, Dinesh Chandra Sinha v. Rahmat Ulla, 1981 All Cri C 313 , Biren v. State of U. P., 1985 All Cri C 116(1), Ram Adhar v. State of U. P., 1980 All Cri C 165 , Awadh Pati Singh v. Raj Bahadur Singh, 1978 All Cri R 422 .