D.K.Trivedi - (1.) BY means of the present petition u/Sec. 482 of CrPC the petitioners challenged the order dated 28-10-1987 passed by Ilnd Addl. Munsif Magistrate, Faizabad, by which the Munsif Magistrate refuesd to accept the final report submitted by the Investigating agency and summoned the petitioners u/Sec. 307 IPC.
(2.) THE brief facts of the case are as follows ; THE FIR was lodged on 14-7-1982 at 4 10 hours by one Smt. Anara Devi at P. S. Malipur, Disstt. Faizabad naming all the petitioners as accused. THErefore the case was registered u/Sec. 307 IPC. Smt. Anara Devi was medically examined on the same day at about 11 a.m. by the Medical Officer Incharge P. H. C. Jalalpur who found five gun shot injuries on her person. THE ponce after completing the investigation, submitted the charge sheet against all the accused persons who are the petitioners in this case. THE petitioners had also moved an application before the Home Department of Govt, of U. P. for fresh investigation by the C.I D. and the Govt, of U. P. vide Government Order No. 52 of 1982, confidential-? directed the C.B. C.I.D. to make investigation. THE C.B. C.I.D. had also sought the medicolegal opinion from the State Medicoligal expert namely Dr. K. K. Singhal, who had given bis report on 23-12-1985. According to Dr. K.. K. Singhal, injuries of injured Smt. Anara Devi were appeared to be manufactured one. THE C.B. C.I.D. after completing the investigation submitted the final report in the court of the Munsif Magistrate. THE complainant also moved a protest application before the court concerned praying that the final report submitted by the C.B. C.I.D. be rejected. THE Munsif Magistrate after perusing the papers, submitted by the police as well as by the C.B. C.I.D., rejected the final report and had taken cognizance against the petitioners. THE learned Munsif Magistrate summoned all the petitioners for the offence u/Sec. 307 IPC by order dated 28-10-1987. THE petitioners filed the present petition challenging the said order, firstly on the ground that the accused were summoned without following the procedure of sections 200 and 202 CrPC, and secondly, it is alleged that from the careful perusal of the records of the case, it is clear that the evidence gathered by the C.B. C.I.D. shows that a case was concocted one and no such incident took place as alleged by Smt. Anara Devi. He relied merely on the opinion of Medico Legal expert who stated that the injuries of Smt Anara Devi appeared to be manufactured one. I have heared Shri Anand Mohan, Advocate, the learned counsel for the petitioners as well as the Govt. Advocate at great length. As regard to the first contention is concerned, the point is concluded by the decisian of the Honourable Supreme court in a case of M/s. India Carat Pvt. Ltd. v. State of Karnataka, 1989 SCC (Crl.) 306= i989 CrLJ 963 and therefore, the said point has no substance. The learned counsel for the petitioners relied on a case reported in Beeran v. State of U. P., 1985 (22) ACC 116. In the said case it was held that if the police submitted the final report and the complainant moved a protest application then, the protest application be treated as complaint and the entire procedure of a complaint case has to be followed.
(3.) IN view of the Supreme Court case M/s. INdia Carat Pvt. Ltd. v. State of Karnataka 1989 SCC Crl. 306=1989 CrLJ 963, the law laid down in Case of Beeran v. State of U. P., 1985 (22) ACC 116 is in my opinion not good law. It is not necessary that if the protest application is moved by the complainant, then the Magistrate must act on the basis of the said protest application and follow procedure of the complaint case and record the statement of the complainant as well as others u/Secs. 200 and 202 CrPC before taking cognizance or summoning of the accused. If the report u/Sec. 169 of CrPC has been submitted by the police, then the Magistrate is fully empowered u/Sec. 190 (1) (b) of CrPC to summon the accused and take cognizance of the case straightway subject to the satisfaction of the Magistrate that he is satisfied from the perusal of the police papers that conclusion arrived at by the police is not correct and prima facie evidence is available against the accused persons. Secondly, if he has some doubts, then, it is also open to the Magistrate to reject the police report submitted u/Sec. 169 CrPC and treat the protest application as complaint but before treating the protest application as complaint, it is necessary to satisfy that the prosest application comprises of all the ingredients of the complaint. In that case, the Magistrate will follow the procedure of complaint case and statements of the witness ess u/Secs. 200 and 202 will have to be recorded by the Magistrate before taking cognizance of the case. The above mentioned preposition of law further finds support from the case of Zumman v. State of U. P., 1987 LLJ 285. In this case, it was held that if the Magistrate does not want to postpone issue of process then, he can take cognizance without following process prescribed u/Secs. 200 and 202 CrPC and the procedure prescribed u/Secs. 200 and 202 CrPC only came into play when the Magistrate does not satisfy with the police report and postpone issue of process of taking cognizance. In these circumstances, he has to follow the procedure prescribed u/Secs. 200 and 202 CrPC.;