Shri Kant Tripathi, J. - (1.) HEARD Mr. S.K. Dubey for the petitioners, Mr. B.K. Mishra for the respondent No. 2 and learned AGA for the respondent No. 1 and perused the record.
(2.) THIS is a petition under Section 482 of the Code of Criminal Procedure (in short 'the Code') for quashing the summoning order dated 30.4.2011 passed by the Additional Chief Judicial Magistrate, Kasaya, district Kushi Nagar in the case crime No. 599 of 2010 under Section 395 IPC, police station Sevarahi, district Kushi Nagar. It appears that in the aforesaid matter the investigating officer submitted a final report. The respondent No. 2 filed a protest petition against the final report and submitted that neither his statement nor statements of his witnesses were recorded during the investigation, therefore, submission of the final report was unjustified. The learned Additional Chief Judicial Magistrate perused the final report as well as the protest petition and other materials filed alongwith the protest petition and passed the summoning order dated 30.4.2011 holding that prima facie a case under Sections 323, 504, 506 and 395 IPC was made against the petitioners, who are eighteen in number. Mr. S.K. Dubey submitted that the summoning order has been passed on the basis of the materials supplied by the respondent No. 2 alongwith the protest petition and there was no evidence at all in the case diary to make out a case against the petitioners, therefore, the summoning order, being based on the materials filed alongwith the protest petition, was not proper. The proper course for the Magistrate was to treat the protest petition as complaint and to proceed therewith under Chapter XV of the Code. He could take the cognizance only on the basis of the materials, if any, collected during the investigation and not otherwise.
(3.) MR. B.K. Mishra, on the other hand, submitted that the investigating officer had not done the investigation in a fair manner. Despite there being adequate evidence, the investigating officer submitted a final report, therefore, the materials produced alongwith the protest petition could be taken into consideration by the Magistrate while passing the summoning order. The law with regard to the power of the Magistrate to agree or not to agree with the police report is well settled. In my opinion, the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge-sheet, in that eventuality the Magistrate may differ from the charge-sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report is submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence. In appropriate cases, the Magistrate, after rejecting the final report may direct for further investigation/re-investigation. This preposition has been settled by the Hon'ble Apex Court in catena of cases and some of the them are as follows: 1. Abhinandan Jha v. Dinesh Mishra, AlR 1968 SC 117, 2. State of Maharashtra v. Sharad Chandra Vinayak Dongra and others, AIR 1995 SC 231, 3. Sanjay Bansal v. Jawahar Lal Vats, AIR 2008 SC 207, 4. M/s India Carat Private Ltd v. State of Karnataka and another, AIR 1989 S.C. 885, 5. H.S. Bains v. State, AIR 1980 S.C. 1883, 6. Minu Kumari v. State of Bihar, (2006) 4 SCC 359, 7. Popular Muthiah v. State, (2006) 7 SCC 296, 8. Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768.;