- (1.) K. N. Ojha, J. This writ petition under Article 226 of the Constitution of India has been filed for quashing the orders dated 18-7-2000 and 24-9-2003 passed by Chief Judicial Magistrate, Jalaun at Orai, and order dated 15- 10-2003 passed by learned Sessions Judge, Jalaun at Orai, by which revision preferred against order dated 24-9-2003 passed by Chief Judicial Magistrate was dismissed and it was held that the Magistrate has no power to recall or vary the order summoning the accused to face the trial as such the objection of the accused is not maintainable. The petitioners accused had first to appear before the Chief Judicial Magistrate, they will have opportunity to argue on the charges in the Court of Sessions and the case is to be decided in accordance with the provisions of Cr. P. C. The petitioners-accused cannot be allowed to by pass the provisions of bail contemplated in the Criminal Procedure Code.
(2.) HEARD Sri B. N. Singh, learned Counsel for the petitioners and the learned AGA. The fact of the case is that Pramod Kumar, respondent No. 2 lodged FIR against unknown person on 8-8-1995 at 12. 30 p. m. bearing Crime No. 209 of 1995 under Sections 302/201 IPC. After investigation final report was submitted on 18-3-1996 in the Court of Chief Judicial Magistrate, Jalaun who sent notice to the respondent No. 2 complainant. The complainant filed an application on 10-1-1997 before the Chief Judicial Magistrate that the Investigating Officer had not collected the evidence and final report was wrongly submitted in the Court. The Chief Judicial Magistrate recorded statement of the complainant under Section 200 Cr. P. C. and of witnesses under Section 202 Cr. P. C. and thereafter, summoned the accused petitioners to face trial under Section 302/201 IPC. The accused did not appear in the Court and they moved an application through their Counsel to recall the order summoning the accused, but the application was rejected on 24-9-2003 by the Chief Judicial Magistrate following the law laid down in 2002 (1) JIC 459 (All) : 2002 (44) ACC 520, M/s Bhopal Sugar Industries Ltd. v. State of U. P. , in which it has been held by this Court that objection filed by the accused for recall of the summoning order was not maintainable as it was not permissible under law. Aggrieved therefrom instant writ petition has been filed on the ground that when a final report was submitted the Magistrate has to either accept the final report or take cognizance of the offence and proceed with the case and if there is some short coming in the investigation he may direct the investigating officer to further investigate the case and submit report or to make inquiry like the complaint case record statements of the complainant and witnesses under Sections 200 and 202 Cr. P. C. and proceed with the case.
(3.) IT is submitted that merely an application was moved by the complainant that he had to adduce evidence. No protest petition was filed containing the details of occurrence. Therefore, the application moved by the applicant could not be treated to be complaint. Besides it under Section 202 Cr. P. C. when it is Sessions triable case and the Magistrate is proceeding to deal with the case as a complaint case, the statement of prosecution witnesses should be recorded and list of all witnesses should be filed in the Court. On the ground it was submitted that the order summoning the accused-petitioners deserves to be recalled. The learned Counsel for the petitioner has placed reliance on 2002 (2) JIC 563 (Allahabad), Bhagwan Singh and others v. State of U. P. and another, in which it has been held by a learned Single Bench of this Court that the accused can be summoned only after list of witnesses has been filed. Under Section 204 (2) Cr. P. C. protest petition cannot be treated as complaint, if details of commission of the offence is not mentioned. With this observation it was held that the learned trial Judge could have taken cognizance of the application under Section 156 (3) Cr. P. C. and not on protest petition in which details of facts have not been mentioned. Even though the impugned order summoning the accused was quashed but it was made clear that the trial Court was free to pass fresh order after removing these defects. The learned Counsel for the petitioners also relied on 2002 (1) JIC 104, Pakhandu and others v. State of U. P. and another, in which it has been held by a Division Bench of this Court that Section 190 (1) (b) of Cr. P. C. is applicable when cognizance is taken without taking into account any extraneous material and only on the basis of material collected during the investigation. In such cases the Magistrate is not bound to follow the procedure of complaint case, but if the Magistrate had taken cognizance under Section 190 (1) (a) of the Code and had opted to hold inquiry under Sections 200 and 202 Cr. P. C. after examining the complainant and the witnesses, the procedure applicable is that all the witnesses are to be examined.;