- (1.) Heard learned counsel for the applicants and learned AGA for the State and perused the record. This is a petition under Section 482 Cr.P.C. for quashing the summoning order dated 27.11.2009 passed by the Additional Chief Judicial Magistrate, Room No.3, Allahabad in case crime No. 345 of 2009 under Sections 325, 427, 504 and 509 and Section 3/5 of Prevention of Damage to Public Property Act, P.S. Handia, District Allahabad. The Investigating Officer appears to have filed a final report in the aforesaid matter. The respondent No.2 preferred a protest petition against the final report and the learned Additional Chief Judicial Magistrate, after considering the materials on record passed the summoning order dated 27.11.2009 and thereby summoned the applicants for trial in regard to the aforesaid offences.
(2.) The learned counsel for the applicants submitted that the final report was filed on the ground that independent witnesses had not come forward to support the F.IR. It was next submitted that the present case is a counter blast of the earlier case lodged on behalf of the applicant No.1. It was also submitted that the learned Additional Chief Judicial Magistrate, committed error of law in placing reliance on the statements of the witnesses Abdul Kalam, Gulam Mohammad and Chulbul as they are interested witnesses. It was next submitted that the learned Magistrate passed the summoning order on the basis of the affidavits filed in support of the protest petition. At the stage of passing the summoning order under Section 204 Cr.P.C., the learned Magistrate was not required to consider pros and cons of the case nor he was required to make evaluation of merits of the case as is done at the stage of final judgement. What is required from the Magistrate is to see whether or not the materials collected during the investigation are sufficient to proceed with the matter and to make out a prima-facie case against the accused. At that stage, whether any witness was inimical, or interested or relative of the complainant, is not a relevant factor. It appears that the learned Additional Chief Judicial Magistrate perused the statements of the aforesaid three witnesses recorded under Section 161 Cr.P.C. and found that their statements were sufficient to proceed with the matter and summon the accused.
(3.) No doubt the final report was submitted by the Investigating Officer, but the learned Magistrate had power to differ from the conclusion drawn by the police. If the learned Magistrate on perusal of the materials collected during the investigation, was of the view that the conclusion of the Investigating Officer was not correct and accordingly he recorded his own conclusion, it cannot be contended that the learned Magistrate exceeded his jurisdiction in doing so. A perusal of the summoning order, nowhere reveals that the summoning order has been passed on the basis of the facts disclosed in the affidavits. Rather it has been passed on the basis of the statements of the aforesaid three witnesses.;