MAHADEV PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition under Section 482 Cr.P.C. has been filed for setting aside summoning order dated 22.10.2008,passed by Ist Addl. Chief Judicial Magistrate, Rae Bareli in Case No. 405 of 2009 Babu Lal Vs. Mahadeo and others under Sections 395,504,506 and 427 I.P.C.. Heard learned counsel for the petitioners, learned A.G.A. for the State and Sri Saurabh Srivastava for Opposite Party No. 2as well as perused the record of the case. It reveals from the perusal of the record that opposite party no. 2 Babu Lal Chaudhary had lodged first information report against the petitioners on 1.8.2005 for the offence punishable under Sections 395,504,506 and 427 I.P.C. The matter was investigated by the Police. The Police after completing the investigation of the case submitted final report under Section 173 of the Cr.P.C. against the petitioners, whereupon opposite party no.2 Babu Lal Chaudhary filed a protest petition and affidavit of certain witnesses. The learned Magistrate after considering the protest petition and affidavit of the witnesses without holding any enquiry or without treating the protest petition as a complaint summoned the petitioners to face trial for the offence punishable under Sections 395,504,506 and 427 I.P.C. Feeling aggrieved against said order this petition has been filed. The learned counsel for the petitioners contended that impugned order is not legal and proper course for the Magistrate was to hold an enquiry treating the protest petition as a complaint or to dispose of the petition by holding that sufficient material has been collected by the Police to summon the accused for the said offences and he does not agree with the opinion expressed by the Police in submitting the final report. Learned A.G.A. fairly admitted that impugned order is not in accordance with law and matter should be remanded back for fresh consideration, as per law. In view of the above, the petition should be allowed. The petition is, therefore, allowed . Impugned summoning order dated 22.10.2008 is hereby quashed. The matter is sent back to the learned Magistrate for fresh decision in accordance with law.