- (1.) PALOK Basu, J. Bhagelu, Jagarnath and Sri Harijan have preferred this application under Section 482 Cr. P. C. praying that further proceedings in Misc. Case No. 35 of 1991 pending in the Court of A. C. J. M. I, Jaunpur should be quashed.
(2.) IT appears that Ram Pyare moved an application purporting to be under Section 156 (3), Cr. P. C. praying that an F. I. R. lodged at the respective police-station has not be registered. They forwarded it to the S. S. P. for getting investigated by the relevant police station. On this Magistrate had passed an order on 14-3-1991 and directed the police station Badlapur to register the case and investigate the matter. After investigation, the police submitted a Final report and forwarded the same to the Magistrate for consi deration, on this, the informant/opp. party Ram Pyarey moved the Magistrate through a protest petition saying that the final report be not accepted. In support thereof he has alleged that some persons on his side had received injuries and that the cross version in which his side was made accused is already pending through the charge-sheet. Considering the matter the Magistrate passed a detailed order on 29-5-1991 whereby he took cognizance of the matter and summoned the accused in the said application under Section 156 (3), Cr. P. C. That is how 27 accused mentioned therein stand summoned under Sections 147, 148, 324, 307 and 323, I. P. C. Sri Ramji Saxena, learned counsel for the appli cants vehemently argued that the Magistrate is wrong in having taken cogni zance under Section 190 (l) (b) of the Cr. P. C. He was entitled at best to take cognizance only under Section 190 (1 ) (a) because there was a protest peti tion which should bi taken to be a complaint on the facts and circumstances of the present case. Sri N. D. Shukla learned counsel appearing for the infor mant has other things to say. IT was argued that once the cognizance has been taken rejecting the Final Report the case will be covered by the dictum of Supreme Court in H. S. Bells, 1980, SC p. 1883. Reliance has been placed by learned A. G. A. in support of the action of the Magistrate on the decision in Mis. India Carat Pvt. Ltd. v. State of Karnataka and Anr. reported in 1989 SC p. 885. The basis contention of Sri Saxena is that since the find report has been rejected in pith and substance relying on the protest petit! n and taking into consideration the facts stated therein, it was incumbent upon the Magis trate to follow the procedure in complaint case. This argument is no tenable Once a a final report is filed the right is conferred upon the infor mant to tell the court that the opinion of the Investigating officer is not correct. The Supreme Court has gone to extent of saying that in such matters notice should be issued to the informant so that one gets an opportunity to tell the court that the final report should not be accepted and reliance was placed upon the case-Bhagwan Das, reported in 1985 SC p. 131, In view of the aforesaid position of law it is no more open to Shri Saxena to canvass that once a protest petition is filed the procedure laid down for complaint case his to be followed before summoning accused. It thus is now conclusively settled that the Magistrate could reject the final report and proceed to take cogni zance of the matter as emerging from the papers connected therewith filed before him. In view of 'he aforesaid discussion, there is no error in the order passed by the Magistrate.
(3.) THERE is yet another aspect to support the aforesaid view. It trans pires from the impugned order that the cross case has already been taken Cognizance of in which a charge-sheet has been filed by the police and is pending trial. Under the circumstances, cross version should be tried along-with the said case. It was then vehemently argued by Sri Saxena that in the cross version of the case, all the accused have been granted bail. Many arguments relating to the merits case by the accused were advanced. Since the other accused in the cross version are on bail the bail application of the accused of this case, be considered on the day when it is moved by the competent court.;