- (1.) RAVINDRA Singh, J. Heard Sri Santosh Tripathi, learned Counsel for the petitioner, learned A. G. A. and Sri A. N. Tripathi, learned Counsel for the respondent No. 2.
(2.) THIS writ petition has been filed against order dated 30-5-1996, passed by learned Chief Judicial Magistrate, Ghaziabad, by which the final report submitted by the Investigating Officer was rejected and the petitioner had been summoned to face trial for the offence punishable under Sections 498-A, 323 I. P. C. and 3/4 Dowry Prohibition Act and the order dated 10-9-2002 passed by learned Sessions Judge, Ghaziabad in Criminal Revision No. 445 of 2002, whereby the revision filed by the petitioner was dismissed. It is contended by the learned Counsel for the petitioner that the respondent No. 2 has lodged the F. I. R. against petitioner in which the final report was submitted by the Investigating Officer. Thereafter, respondent No. 2 filed a protest petition in the Court of learned Chief Judicial Magistrate, Ghaziabad and filed affidavit of the witnesses. Learned Chief Judicial Magistrate, Ghaziabad relying upon the affidavits filed by the respondent No. 2 had relied upon the protest petition of petitioner and affidavits filed by the witnesses and had taken cognizance against petitioner while rejecting the final report. It is contended that from the perusal of the impugned order dated 30-5-1996, it is clear that the learned Magistrate had ignored the material collected by the Investigating Officer during investigation, as such he had not taken into account the investigation done by the Investigating Officer. It is contended that if the learned Magistrate was not satisfied with the investigation done by the Investigating Officer, the matter could have been sent for reinvestigation or if the learned Magistrate was relying upon the protest petition and the affidavits filed by the witnesses, the protest petition could have been treated as complaint case and the procedure prescribed for complaint case could have been followed. The learned Magistrate neither sent the matter for reinvestigation nor he treated this protest petition as complaint and not followed the procedure prescribed for a complaint case, as such the impugned order is illegal which is liable to be set aside.
(3.) THIS contention is opposed by learned A. G. A. and Sri A. N. Tripathi, learned Counsel for the respondent No. 2 by submitting that there is sufficient material present on the record to show that the petitioner has committed the alleged offence and after considering all the facts and circumstances of the case, the learned Chief Judicial Magistrate, Ghaziabad has summoned the petitioner to face trial by rejecting the final report. From the perusal of the record as well as the impugned order dated 30-5-1996, passed by learned Chief Judicial Magistrate, Ghaziabad, it appears that the learned Chief Judicial Magistrate, Ghaziabad had considered only protest petition, final report and the affidavit filed by respondent No. 2 and had taken cognizance against the petitioner and rejected the final report. It also appears that the learned Chief Judicial Magistrate, Ghaziabad has not considered the investigation done by the Investigating Officer. In such circumstances, the learned Chief Judicial Magistrate, Ghaziabad was under obligation to send the matter for reinvestigation or to proceed further as a complaint case, as such the impugned order dated 30-5-1995 is illegal which is liable to be set aside. The order dated 10-9-2002 passed by learned Sessions Judge, Ghaziabad in Criminal Revision No. 445 of 2002 is also illegal order because he has also not considered the settled legal position. As such the order dated 10-9-2002 is also liable to be set aside. Therefore, the impugned order dated 30-5-1996 passed by learned Chief Judicial Magistrate, Ghaziabad and order dated 10-9-2002 passed by learned Sessions Judge, Ghaziabad in Criminal Revision No. 445 of 2002 are set aside.;