KIRAN PAL Vs. STATE OF U P

JUDGEMENT

(1.) A. P. Sahi, J. This revision questions the correctness of the order dated 15. 11. 2007 on the ground that the Court below has proceeded on an erroneous assumption of facts and law.

(2.) AN F. I. R. was registered on 11. 9. 2003 under section 364 I. P. C. in which the revisionists were named as accused. The Investigating Officer recorded the statements of the witnesses and thereafter submitted his report on 13. 10. 2003 to his higher authorities stating therein that no offence is made out. The Circle Officer of the area concerned directed the Investigating Officer to hand over the investigation to some other Inspector and again a report was submitted on 27. 12. 2003 supporting the earlier investigation as proposed as no offence was made out. The said report was submitted to the Court for acceptance upon which objections were called upon and a protest petition was filed by the O. P. No. 2 supported with affidavits of the witnesses Smt. Urmila, ANgoori and his own affidavit dated 2. 3. 2006. The learned Magistrate has relying on the same/rejected the police report and has summoned the applicants.

(3.) THE question as to whether affidavits can be entertained or not, need not detain this Court. Section 297 Cr. P. C. entails the authority before whom affidavits can be sworn and affirmed. THE question is as to whether such affidavits can be taken into consideration at the time of summoning and taking cognizance under section 190 (1) (b) Cr. P. C. This question in turn depends on, as to whether such material is extraneous material or an additional material which cannot be looked into at the time of taking of cognizance. This Court in the case of Sukhpal Singh, (supra) after disclosing the language of the relevant provisions, and after consideration of impact of the decision, relied by the learned Counsel for the applicants, has held as follows in para 10 of the said decision : " 10. In the backdrop of this proposition of law the contention of the learned Counsel for the applicants that the affidavits were filed in support of the protest petition, therefore, magistrate was bound to adopt the procedure of complaint case is to be examined. . At a glimpse, the contention seems to be attractive but in essence is devoid of substance. When the notice is issued to the informant before accepting the final report, affording him an opportunity of hearing as to whether the final report be accepted or not, the opportunity must be meaningful and not an empty formality. At this stage the informant is free to support his case by filing the affidavits of the witnesses of the investigation for the limited purpose to show that a perusal of the case diary itself makes out an offence. If such affidavits or affidavit is filed, it cannot be asked that Magistrate is bound to adopt and observe the procedure of complaint case. Merely because some affidavit as aforesaid, have been filed along with the protest petition does not divest the Magistrate to take cognizance under section 190 (1) (b) Cr. P. C. It is left to the discretion of the magistrate to adopt either of the two courses provided under section 190 (1) (a) and 190 (1) (b ). He may summon the accused on the identical material contained in the case diary and affidavits filed for the purposes of non-acceptance of final report under section 190 (1) (b) Cr. P. C. or he even can treat the protest petition, at the behest of the informant to be a complaint, and then follow the procedure of complaint case. (Emphasis mine ). Thus the magistrate can look into the case diary and the affidavit filed for the rejection of the final report and for taking cognizance under section 190 (1) (b) and there is no bar to it if the affidavit reiterates the same facts which are mentioned in the case diary itself. Only because the affidavits are filed with the contents that the final report be rejected and accused be summoned, magistrate is not bound to follow the procedure of a complaint case and such an affidavit or affidavits does not takes away his power to act under section 190 (1) (b) Cr. P. C. If the contention of the Counsel for the applicant for following the procedure of the complainant case in such an event is allowed to prevail then it will be repetition statements of those very facts contained in the case diary and affidavit and will, therefore be an unnecessary exercise by the magistrate loathing him with additional burden for no gains. Consequently the proposition that the magistrate was bound to follow the procedure of complaint case, when affidavit is filed for the purpose of not accepting the final report, advanced by the applicant's Counsel, cannot be accepted and is repelled and consequently rejected.