- (1.) THIS is a petition under Section 482 Cr.P.C filed by Rajveer Singh for invoking inherent jurisdiction of this Court for quashing the impugned order dated 8.8.2012 passed by Sessions Judge, Sitapur, in Criminal Revision No. Nil/2012; Rajveer Singh vs. State as well as order dated 23.8.2011 passed by learned ACJM, Court No. 2, Sitapur and the proceeding of Misc. Case No. 1096 of 2011; Smt. Asha Devi vs. Rajveer Singh pertaining to Case Crime No. 298 of 2010, under Sections 376, 506 IPC and 3(i)(xii) SC/ST Act, P.S. Mahmoodabad, District Sitapur. Smt. Asha Devi, opposite party no. 2 moved an application under Section 156(3) Cr.P.C against Rajveer Singh. Application was allowed and F.I.R was registered as Case Crime No. 298 of 2010, under Sections 376 and 506 IPC and 3(i)(x) and 3(i)(xii) SC/ST Act. After investigation, a final report was submitted. Show cause notice was issued to Smt. Asha Devi, she moved a protest petition. On hearing the protest petition, learned ACJM, Court No. 2, Sitapur passed the impugned order dated 23.8.2011 rejecting the final report and summoning the petitioner, Rajveer Singh under Sections 376, 506 IPC and 3 (i)(xii) SC ST Act.
(2.) AGGRIEVED from the summoning order, petitioner-Rajveer Singh preferred a revision before Sessions Judge, Sitapur who by impugned order dated 08.08.2012 rejected the revision at the time of admission. Aggrieved from the above order, this petition was filed by Rajveer Singh for quashing of the summoning order and order passed under revision. Learned counsel for the petitioner submitted that the impugned summoning order is illegal because after submission of final report, a protest petition was presented by opposite party no. 2 and on protest petition, considering the extraneous material like affidavit, cognizance was taken by the Magistrate under Section 190(1)(b) Cr.P.C. Cognizance under Section 190(1)(b) Cr.P.C can be taken only on the basis of final report without considering any extraneous material. If any extraneous material on protest petition is considered then in that case cognizance cannot be taken under Section 190(1)(b) Cr.P.C. In that case, procedure laid down in chapter XV Cr.P.C has to be followed. In this respect, reliance was placed by petitioner's counsel on "2010(69) ACC 780 Kallu and others Vs. State of U.P., 2010 (69) ACC 540 Mitrasen Yadav Vs. State of U.P. Learned AGA has not disputed the contention of the petitioner that cognizance under Section 190(1)(b) Cr.P.C can be taken only upon a police report and not on the basis of extraneous material but he further submitted that in present case the cognizance was taken on the basis of case diary and not on the basis of extraneous material, thus, there is no illegality in the impugned order. I have given thoughtful submission to the contention of the parties. In the case of Kallu (supra), the court discussing the various case law on the point in para 10 of the judgment observed that "therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in Sections 200 and 202 Cr.P.C." it would have decided whether the complaint should be dismissed or process should be issued. If after taking evidence under Sections 200 and 202 Cr.P.C., the Magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against the final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance." The same view was expressed in Mitrasen Yadav's case (supra) in which it was held that on the basis of protest petition and documents filed therewith no cognizance under Section 190(1)(b) Cr.P.C can be taken. The Division Bench of this Court in the case of Pakhando and others vs. State of U.P and others 2001 (43) ACC 1096 has held as under:- "that on filing final report, cognizance cannot be taken on the basis of the extraneous material like affidavits filed in support of the protest petition against the final report and if the material in the case diary is not sufficient for summoning the accused persons, then the procedure laid down in Chapter XV Cr.P.C. Has to be followed by the Magistrate after treating the protest petition as complaint."
(3.) IT is clear from the above case laws that if in any case, a final report is submitted and after submission of final report protest petition was presented and if any order summoning accused person and rejecting protest petition was passed by the court on the basis of some extraneous material like affidavit, injury report etc. filed in support of protest petition that order cannot be passed under Section 190(1)(b) Cr.P.C. If court relies on extraneous material filed with protest petition in that case he has to follow the procedure laid down under Chapter XV Cr.P.C. Court can take cognizance under Section 190(1)(b) Cr.P.C only on the basis of report submitted by police. From the above discussion, it is clear that if the impugned order is passed on the basis of extraneous material then in that case the order is illegal and if it is passed on the basis of report submitted by police then in that case there is no illegality in the order.;