- (1.) Heard Dr.L.P.Misra, learned counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State. The facts of the case are that upon the application moved by the respondent No.2, under Section 156(3) of the Code of Criminal Procedure, the learned Chief Judicial Magistrate passed an order on 24th of January, 2007 to register a case and investigate the same. After investigation the police filed final report on 15th of November, 2007. The opposite party No.2, thereafter, filed a complaint on 11th of January, 2008 for the same subject matter, which was registered as complaint case No.641 of 2008. That too was rejected by the learned Magistrate on 30th of June, 2008. Being aggrieved with which, she preferred a revision before the Sessions Judge, Faizabad, who allowed the same by means of order dated 26th of August, 2008 and remanded the matter to the concerned Magistrate for passing a fresh order on the basis of the evidences available on record. Pursuant to the said order, the learned Magistrate passed the order on 5th of February, 2009 and summoned the petitioner for trial under Section 376, 506 of the Indian Penal Code, which is under challenge and in furtherance thereof another order dated 31st of January, 2011 has been issued, thereby summoning the petitioner for trial. The learned counsel for the petitioner submits that the learned Magistrate has passed the order dated 5th of February, 2009 without any fresh material and evidence as well as without examining the witnesses of the case, which is mandatory under Section 202(2) Cr.P.C. Moreover, on the event of final report, she could have preferred only a protest application, not the complaint. The learned counsel for the petitioner further informs that in the meantime she also moved an application before the State Government to set up C.B.C.I.D. Enquiry.
(2.) In light of the said facts the petitioner moved an application before the court concerned raising objection against the summoning order dated 5th of February, 2009. In the light of the pendency of enquiry by C.B.C.I.D., the learned Magistrate also stayed the proceeding of complaint case during the pendency of investigation by the C.B.C.I.D. The C.B.C.I.D. after recording the statement of relevant witnesses, including the respondent No.2 and her husband, submitted final report on 9th of September, 2009. Even after submission of a final report by the C.B.C.I.D., the learned Magistrate has summoned the petitioner by means of order dated 31st of January, 2011 for trial. Thus he has challenged the summoning order on the strength of the facts of final report submitted by the police, whereas I am of the view that the learned Magistrate is fully competent to examine the correctness of the facts stated in the complaint with his/her judicious mind and even after the final report submitted by the police. If he is satisfied with the material placed before him that the case for commission of offence is made out against the accused, he is at liberty to summon him, therefore, at this stage, I am of the view that it is not the stage to examine the correctness of the order passed by the learned Magistrate.
(3.) I am informed by the learned Additional Government Advocate that earlier also being aggrieved with the summoning order dated 5th of February, 1999, the petitioner presented a petition before this court being Criminal Misc. Case No.2417 of 2009, under Section 482 of the Code of Criminal Procedure, in which this court has already refused from interfering in the proceeding of Case No.494 of 2008, pending before the learned IV Additional Civil Judge/Judicial Magistrate, Faizabad, by means of order dated 9th of December, 2010. In light of this fact also the present petition deserves to be dismissed.;