SHABIR ALI Vs. STATE OF U P

JUDGEMENT

(1.) THIS criminal revision is directed against the order passed by Mr. R. S. Misra, Judicial Magistrate, Mirzapur on 3-12-1986 in criminal case no. 83 of 1986 State v. Shaukat Ali and others through which he has summoned the applicant and others for offences punishable under sections 147 148, 149 and 323 of the IPC.

(2.) BRIEFLY stated the facts are that Imamul Haq opposite party no. 2 had filed a first information report in respect of a cognizable offence under sections 147, 148 and 149 IPC and some other offences. An investigation was made and a final report was submitted. This final report was accepted by the learned Magistrate after which a protest petition was moved along with some affidavits and the learned Magistrate passed the impugned order dated 3-12-1986 taking cognizance of the matter and straightway summoning the applicant and others to stand their trial for the offences complained of. The contention of the revisionist is that after accepting the final report once, the Magistrate was not entitled to take cognizance of the case and in any view of the matter if a cognizance had to be taken, it could be taken under section 190 (1) (b) of the Code of Criminal Procedure treating the protest petition as a complaint and the procedure of the complaint cases had to be followed i.e. statement under section 200 OrPC had to be recorded and then the Magistrate had to decide whether he wanted to proceed forthwith or to enquire into the matter himself or through some other agency. It is contended that it was not open to the learned Magistrate to proceed by summoning the petitioner and others straightway as is done in cases of police report.

(3.) THE most important case for consideration before the Division Bench was of Gopal Vijay Verma (supra). This was a matter which went to the Supreme Court against a Single Judge decision of the Patna High Court in the matter of Bhumeshwar Prasad Sinha v. State of Bihar, 1981 CrLJ 795. A question identical with the present was one raised before a single Judge of the Court. THE learned Judge while quashing the cognizance of the offence, made the following observation :