- (1.) Heard learned counsel for the petitioners, learned AGA and perused the record.
(2.) It transpires from the record that at the instance of one Smt. Rekha (herein respondent no. 2) a case at Crime No. 129 of 2011, under sections 363,376 and 506 IPC was registered at P.S. Deoband, District Saharanpur. The case of the said Smt. Rekha against the petitioners was that the present two petitioner and another (Yashpal) after abducting committed rape on her. The case was investigated and after investigation final report was submitted to the court of the learned Additional Chief Judicial Magistrate, Deoband, Saharanpur. Aggrieved by the submission of the final report by the police, Smt. Rekha filed a protest petition before the Magistrate, who after perusing the evidence, other materials on the record of the case diary and statement of the prosecutrix, Smt. Rekha, was satisfied that a prima facie case under the aforesaid offence was made out against the petitioners and another, namely Yashpal and there was sufficient materials and grounds to proceed further in the matter against the accuse persons. The learned Magistrate vide order dated 17.08.2012 under section 190 (1)(b) Cr.P.C. summoned the accused persons, including the petitioners to face trial for the aforesaid offence. Aggrieved by the order impugned, the accused persons preferred Criminal Revision No. 517 of 2012 in the court of the learned Additional Sessions Judge/Ex Cadre Room No. 2, Saharanpur which was also dismissed vide order dated 16.05.2013. Both the said orders passed by the courts below are impugned herein.
(3.) I am of the considered opinion that there is settled proposition of law that on receipt of the final report the Magistrate has four options open to him. Firstly, he can reject it and summon the accused, if he is satisfied that there is sufficient evidence and material on case diary to proceed further in the matter against the accused persons. Secondly, If the Magistrate finds that the investigation has been carried out in a perfunctory manner, he may send the matter back for further investigation by the investigating agency. Thirdly, he may also accept the final report but before accepting the same, he is obliged to issue notices to the informant/complainant to hear him on the point. It offers acquiescent right to the complainant/informant to be heard and by usurping this right he/she tries to convince the Magistrate to reject the final report and take cognizance in the matter against the accused persons by filing protest petition. It would not be out of context to mention that as a fourth measure, the Magistrate can also treat the initial information report or the Protest Petition as a complaint and may hold an enquiry in the matter himself under Chapter XV of the Code of Criminal Procedure to find out as to whether a prima facie case is made out against the accused person or not and if he is satisfied that there are sufficient grounds to proceed further, he may proceed in the matter in accordance with the provisions as laid down under section 204 of the Code of Criminal Procedure else he may dismiss the case under section 203 Cr.P.C.;