- (1.) Heard Sri Dharmendra Singhal/Sri I.K. Chaturvedi, learned counsel's for applicants and Sri Vimlendu Tripathi, learned A.G.A. This application under Section 482 Cr.P.C. has been preferred against the order dated 19.9.2013, passed by the Chief Judicial Magistrate, summoning the applicants on a protest under Sections 147/302/504/506 IPC and the order dated 16.4.2015, passed by the Addl. Sessions Judge (F.T.C.), Jhansi, rejecting a revision preferred therefrom. An FIR came to be lodged on 19.7.2012 against the applicants and other accused persons under Sections 147/148/149/302/504/506/34 IPC. After investigation, police report was submitted against three co-accused, i.e., non-applicants on 29.9.2012. The learned Magistrate on 20.10.2012 took cognizance of the offence. O.P. No.2/informant filed a protest before the Magistrate on 3.12.2012 for summoning the applicants, which came to be dismissed on 18.1.2013 on the ground that cognizance has already been taken on 20.10.2012, thus there is no justification to summon the applicants at this stage. The order dated 18.1.2013 was challenged in Criminal Revision No.35/2013, which came to be allowed on 30.8.2013, whereby order of the learned Magistrate dated 18.1.2013 was set aside and he was directed to pass fresh orders. Pursuant thereto, the learned Magistrate on 19.9.2013, summoned the applicants under the aforesaid offences, which has been maintained in Criminal Revision No.262/2013 under order dated 16.4.2015.
(2.) Sri Singhal, learned counsel for applicants broadly made two submissions. He first contended that once upon submission of police report, the learned Magistrate took cognizance on 20.10.2012 then in the absence of any challenge to cognizance, it was not open for the revisional court under order dated 16.4.2015 to sit in review of the order dated 20.10.2012 and summon the applicants. He also submits that the power to summon applicants who were not charge-sheeted, could be exercised only after committal, by the trial court either under Section 193 or after evidence is led at the stage of Section 319 of the Code.
(3.) Learned A.G.A. while refuting the submissions, contends that cognizance and summoning are two different facets of an inquiry. He submits that once cognizance of the offence was taken by the Magistrate, then a revisional court, being a superior court, could always direct the Magistrate on a protest to summon the applicants on available materials under Section 204 of the Code. He also submits that in the absence of any notice on the part of the Investigating Officer under Section 173(2)(ii) Cr.P.C to the informant that he proposes to file a final report against the applicants, and also in the absence of any notice by the court concerned on the final report, the only remedy available for the informant/O.P. No.2, was to file an application for summoning the applicants on available materials, then no objection could be taken to such summoning. He relies on the judgments of the Apex Court in the cases of : A. Sasikanth: J. Rajmohan Pillai Swil v. State of NCT of Delhi, 2001 AIR(SC) 2747: State of Delhi: Union of India, ) and that of Dharam Pal and others v. State of Haryana and another, 2014 3 SCC 306.;