RAJESH CHANDRA,J. - (1.) REVISIONISTS Rakesh Pratap Singh and Subhash Chandra Misra have filed this revision against the order dated 28.4.2003 passed by the Addl. Chief Judicial Magistrate ( Court No. 9 ) Allahabad summoning the revisionists also for the offence under Section 392 I.P.C. In brief the facts as are discernible from the papers filed with revision,are that a case for the offence under Section 392 I.P.C. was registered against the revisionists as well as and one Mahendra Pratap Singh at Police Station Nawabganj, District Allahabad at Crime No. 33 of 2002. The matter was investigated and thereafter a charge-sheet was submitted only for the offence under Sections 323 and 504 I.P.C. After the submission of the charge-sheet, the complainant Munesh Kumar Misra moved an application before the Judicial Magistrate- I Allahabad that the cognizance for the offence under Section 392 I.P.C. may also be taken against the three accused persons, The application was rejected by the Judicial Magistrate vide order dated 20.7.2002. A Criminal Revision No. 627of 2002 Munesh Misra Vs. Mahendra Pratap Singh and others was filed before the Sessions Judge, which was ultimately decided by the Addl. Sessions Judge, Court No.9 Allahabad vide order dated 31.10.2002. The Revisional Court found that prima-facie offence under Section 392 I.P.C. was also made out. The Revisional Court then set aside the aforesaid order dated 20.7.2002 and remanded the case with a direction to the Judicial Magistrate to pass an appropriate order.
(2.) AFTER the matter was remanded, the case came to be taken up in the Court of Addl. Chief Judicial Magistrate (Court No. 9) Allahabad, who after hearing the Assistant Prosecuting Officer, the complainant as well as the accused persons, came to the conclusion that from the evidence collected during investigation a case under Section 392 I.P.C. is made out against the revisionists and as such summoned the revisionists for the aforesaid offence vide order dated 28.4.2003. It is against this order that the revision has been filed. In revision, I have heard learned counsel for the revisionists namely SriK.N. Mishra as well as learned A.G.A. The Opp. Party No. 2 Munesh Kumar Mishra was served vide order dated 17.5.2007 but did not take part in these proceedings. The learned counsel for the revisionists argued that after the application was moved by the complainant for summoning the accused persons under Section 392 I.P.C., accused persons had filed certain affidavits which were not considered by the lower court before passing the impugned order. It was further argued that the learned lower court has committed illegality in passing the impugned order as after taking cognizance for the offence under Sections 323 and 504 I.P.C., the Magistrate could not have summoned the revisionists for the offence under Section 392 I.P.C. until and unless some evidence making out the offence was recorded in the lower court. Learned A.G.A. on the other hand, argued that the Magistrate has not committed any illegality in passing the impugned order. At the stage of taking cognizance, the evidence filed by the defence cannot be considered. It was further argued that the cognizance is taken of the offence and not of the offender and in these circumstances if a case under Section 392 I.P.C. was made out against the accused-revisionists from the evidence collected during the investigation, the Magistrate was well within his rights to summon the revisionists for the said offence.
(3.) I have considered over the respective arguments. So far as the consideration of affidavits find by the accused persons in the lower court is concerned, the Hon'ble Apex Court has laid down in the case of State of Orissa Vs. Debendra Nath Padhi, 2005 (1) S.C.C. 568 that at the time of taking cognizance, the accused has no right to produce any material. Thus, the controversy has been set at rest by the above said judgment of the Apex Court and now it is settled law that at the time of taking cognizance or at the time of framing charge, the accused has no right to produce any material. In this view of the matter, learned Magistrate has not committed any illegality in not considering the affidavits filed by the accused persons. The second limb of the argument is that after filing of the charge-sheet under Sections 323 and 504 I.P.C. the magistrate could not have summoned the revisionists for the offence under Section 392 I.P.C. and the summoning could have been taken place for the said offence after recording some of the evidence of the prosecution. I have considered over this argument and I am satisfied that the same does not contained any merit. In this connection judgment of Hon'ble Apex Court rendered in the case of Rajendra Prasad Vs. Bashir and others, 2002 S.C. (Crl.), 21. may be referred. In that case, the charge-sheet was submitted for some offences which did not include the offence under Section 395 I.P.C. Complainant then submitted a protest petition seeking addition of Section 395 also. The magistrate allowed the application and finding that the offence is also under Section 395 I.P.C. committed the case to the court of Sessions. The matter was taken up to the Apex Court and the Court held that the cognizance taken by the Magistrate was of the offence and not of the offenders and the order summoning accused persons for the under Section 395 I.P.C. also was confirmed by the Apex Court. ;