Hon'ble S.C. Agarwal, J. - (1.) HEARD learned counsel for the revisionist and learned A.G.A. for the State and perused the material available on record.
(2.) NO notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he/she feels so aggrieved. This revision under Sections 397/401 Cr.P.C. is directed against order dated 6.7.2011 passed by Judicial Magistrate, Moradabad in criminal case No. 1394 of 2010 (Smt. Sudha Rani v. Hargyan and others) arising out of case crime No. 524 of 2008, P.S. Behjoi, District Moradabad, whereby the final report submitted by the police was rejected, cognizance was taken and the revisionist Hargyan was summoned to face trial under Sections 376,506 IPC. Learned counsel for the revisionist submitted that the Magistrate has neither taken cognizance on the basis of material available in the case diary nor the procedure prescribed for complaint cases was adopted, but a novel method was adopted by the Magistrate and cognizance has been taken on the basis of affidavits of the complainant and the witnesses Chandra Pal and Guljari.
(3.) A perusal of the impugned order reveals that the Magistrate has criticized the investigating officer for not recording the statement of witness Guljari, not getting the statement of the victim recorded under Section 164 Cr.P.C. and for not taken into possession the clothes of the victim and not sending them for analysis to public analyst. A Division Bench of this Court in the case of Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096, held that on receipt of a final report submitted by the police and a protest petition being filed by the complainant, the Magistrate has following four courses opened to him: (1) He may agreeing with the conclusions 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 (2) He may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (3) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner ; or (4) 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 proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. ;