KALLU Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Mr. D.K. Mishra, learned Counsel for the petitioner as well as Mr. R.P. Shukla, learned Additional Government Advocate. The petitioner has challenged the order dated 1.6.2006 passed in Case No. 2306 of 2006 by learned Chief Judicial Magistrate, Unnao whereby final report has been rejected and the petitioner has been summoned for trial under sections 380, 506, I.P.C. as well as the order dated 24.9.2008 passed in Criminal Revision No. 161 of 2008 by learned Sessions Judge, Unnao whereby petitioner's criminal revision against the order of learned Chief Judicial Magistrate has been dismissed, merely on the ground that the learned Magistrate has committed manifest error in law in summoning the petitioner treating the protest petition as complaint case even after receiving the final report in his favour and further, there is violation of Sec. 204 (2) of the Code as till the date of issuance of order, no list of prosecution witnesses was filed. In support of his contentions, learned Counsel for the petitioner has placed reliance upon the cases of Mukesh and others Vs. State of U.P. and others, 2005 (53) ACC 49 (HC) ; Smt. Chhaya William and others Vs. State of U.P. and another, 2003 (47) ACC 1017 (HC) ; Bhagwan Singh and others Vs. State of U.P. and another, 2002 (45) ACC 402 (HC) , and Pakhandu and others Vs. State of U.P. and another, 2001 (43) ACC 1096 (HC) and submits that the order is unsustainable and is liable to be quashed. Under Sec. 190, Cr. P.C., learned Magistrate may take cognizance of any offence.

(2.) So far as the compliance of provision of Sec. 204 (2) is concerned, it is not mandatory as the prosecutor is under obligation to furnish the list before the stage of starting the evidence of witness. Since, in this respect, the provision of Sec. 254, Cr. P.C. is relevant, it is reproduced as under :

(3.) In the light of the aforesaid decision, the conclusion arrived at by this Court is reproduced hereinunder :