- (1.) Heard Mr.R.P.Mishra, learned counsel for the petitioners and Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State. The petitioners have challenged the summoning order dated 5th of March, 2010, passed by the Additional Chief Judicial Magistrate, Court No.1, Hardoi, in Criminal "Misc.Case No.227 of 2008, whereby the petitioners have been summoned for trial under Section 302/34 IPC. The learned counsel for the petitioners submits that it is not in dispute that after investigation since the police did not find the commission of offence by the petitioners, it filed final report." The learned Magistrate was also satisfied with the final report, but before the acceptance of the same, the respondent No.2 filed a separate application, which has been registered as a complaint case by the learned Magistrate in exercise of power provided under Section 190(1) (c) of the Code of Criminal Procedure, whereas the law is settled that if a complainant is not satisfied with the final report, it is open for him to file a protest application, which is registered by the learned Magistrate as a complaint and he proceeds with the case treating the same as a complaint case.?
(2.) So far as Section 190 (1) (c) of the Code of Criminal Procedure, is concerned, under that very provision? the learned Magistrate is empowered to take cognizance of an offence upon information received from any person other than the police officer or upon his own knowledge that such offence has been committed.? Here in the present case the complainant himself came forward and moved an application, not the other person nor the learned Magistrate has taken cognization upon his own knowledge, therefore, he submits that the power exercised by him under Section 190 (1)(c), of the Code of Criminal Procedure, suffers from jurisdictional error. " Moreover, on entertaining the application as complaint, the learned Magistrate was under obligation to call upon the complainant to produce the witnesses, upon whom he relied upon, but he failed to do so." It is not in dispute that the complainant produced earlier a list of two witnesses and subsequently 26 witnesses, but he produced only five witness for examination, on this count also he submits that the learned Magistrate has violated the procedure prescribed therefor, therefore, the summoning order suffers from jurisdictional error and deserves to be quashed.
(3.) The petitioners have brought on record the order sheet indicating the orders passed on different dates, which establishes that the learned Magistrate is proceeding with the said application, as complaint case. "Had it been the protest application, it would have, similarly, been taken as a complaint, therefore, I am of the view that the learned Magistrate is proceeding with the application as a complaint case, therefore, there is no error in the proceedings.? It is observed that the said application shall be treated as a protest application in the said case and the proceeding shall not be treated as separate proceeding, but it shall be under the proceeding of the main case." So far as the question of production of whole witnesses, who are enlisted in the list of witnesses is concerned, I am of the view that it is not necessary for the complainant to examine the whole witnesses, who are enlisted in the list of witnesses.? The Magistrate has to express his satisfaction to pass an order on the complaint filed on the basis of the statement of complainant as well as witnesses, who have been produced before him for examination. Therefore, "I am of the view that the learned Magistrate has not committed error in issuing the summoning order". The petition, being lack of merit, is dismissed.;