RAMCHANDER Vs. STATE OF U P

JUDGEMENT

(1.) BY means of this revision preferred under Section 397 of the Code of Criminal Procedure (in short the 'Cr. P.C.'), order dated 4.12.2003, passed by the Judicial Magistrate-I, Gorakhpur, in the criminal case arising out of Crime No. 333 of 2002, State v. Ramesh and others, under Sections 323, 325, 504, 506 and 452, I.P.C. P. S. Sahjanwa, District Gorakhpur and the order dated 17.5.2004, passed by the Additional Chief Judicial Magistrate, Court No. 13, Gorakhpur in the said case have been challenged.

(2.) BY the impugned order dated 4.12.2003, the revisionists (hereinafter to be referred as 'the accused') were summoned to face the trial under Sections 323, 504, 506, 325 and 452, I.P.C. after rejecting the final report submitted by the police of P. S. Sahjanwa District Gorakhpur in Case Crime No. 333 of 2002 and by the impugned order dated 17.5.2004, application dated 6.12.2003 moved by the revisionists to recall that summoning order has been rejected.

(3.) THE main submission made by the learned counsel for the revisionists was that the accused have been summoned to face the trial vide impugned order dated 4.12.2003 on the basis of the protest petition filed by the complainant against the final report without following the procedure laid down in Chapter XV, Cr. P.C. and hence, the impugned order being illegal was liable to be recalled, but the court below without sufficient reason declined to recall the aforesaid summoning order and application dated 6.12.2003 moved by the accused for this purpose has been rejected vide impugned order dated 17.5.2004 and hence both the impugned orders should be set aside and the case be sent back to the lower court concerned for passing fresh order after following the procedure laid down in Chapter XV, Cr. P.C. THE contention of the learned counsel for the revisionists was that the Magistrate concerned was under obligation to treat the protest petition of the complainant against final report as complaint and to follow the procedure laid down in Chapter XV, Cr. P.C., before passing the impugned summoning order.