- (1.) This revision is directed against the judgment and order dated 8.9.2003 passed in Misc. Case No. 211 of 2002, Smt. Kamlesh v. Jagdish Prasad and others whereby the accused/revisionists have been summoned under Sections 395, 420, 467, 468 and 471 I.P.C., P.S. Narkhi, district Firozabad by the Sessions Judge, Firozabad. List is revised. No one has appeared on behalf of the opposite party No. 2. Heard learned counsel for the revisionists, learned A.G.A. on behalf of the State and have gone through the entire record.
(2.) he opposite party No. 2 lodged a first information report on 4.9.2001 against the revisionists that on 6.5.2001 at about 8 P.M. the accused/revisionists entered into the house and threatened her of dire consequences and looted the house hold belongings as they were trying to grab the house of the complainant on the basis of a forged will when her report was not lodged at the concerned police station she moved to the District Magistrate, Firozabad and under his direction the first information report was registered. It is submitted by the learned counsel for the revisionists that the aforesaid first information report was lodged on false and frivolous allegation that the revisionists were trying to grab the land in dispute. The will was duly executed by the husband of the opposite party No. 2 in his life time. A civil suit is already pending in respect of the same property restraining the opposite party No. 2 not to interfere in the peaceful possession who is contesting the same. After investigation the case was found to be false and as such the final report was submitted by the Investigating Officer and the report was also submitted to initiate proceedings under Section 182 Cr.P.C. for lodging false complaint against the revisionists but the learned court below rejected the final report and accepted the protest petition filed by the opposite party No. 2. The court below has committed manifest error in discarding the final report and completely ignored the fact that the civil suit is also pending in respect of the same dispute. The court below has not adopted the correct procedure in passing the summoning order, therefore, the order passed by the court below suffers from manifest error of law and as such is liable to be quashed.
(3.) The learned A.G.A. has supported the judgment and order of the court below. From the version of the first information report prima facie case against the revisionists was made out and it has been contended that mere pendency of civil suit there is no bar for criminal prosecution, the learned court below has rightly taken cognizance exercising the power under Section 190 (1) (b) Cr.P.C. The Division Bench of this Court in Pakhando and others v. State of U.P. and others,2001 43 ACC 1096 has held that the Magistrate may adopt of the following procedure; (I) he may agreeing with the conclusion arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190 (1) (b) Cr.P.C. and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in perfunctory manner; or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceeded to act under Sections 200 and 202 Cr.P.C. and thereafter decided whether the complaint should be dismissed or process should be issued, therefore, the course adopted by the learned Magistrate is of issuing process straightway to the accused/revisionists under Section 190 (1) (b) Cr.P.C. without being bound by the conclusion of the investigating agency as such there is no illegality in the order passed by the court below, hence the revision is liable to be rejected.;