- (1.) VIDE order dated 28th September, 1994 the Hon'ble Single Judge, finding two contrary views expressed by Hon'ble Single Judges in Gajendra Agarwal v. State of U. P. , 1994 ACC 341 and Pratap v. State of U. P. , 1995 (2) JIC 2040 (All) : 1991 Cr. L. J. 1669, referred the matter to be decided by the Larger Bench formulating the following questions: (1) Whether cognizance taken after filing the protest petition will be deemed to have been taken under clause (a) or clause (b) of Section 190 (1) Cr. P. C. (2) Whether it will make any difference if the protest petition is accompanied by some affidavit, injury report, X-ray report or similar other documents. (3) When cognizance is taken on the basis of protest petition and accompanying documents will the same be invalid on account of omission to examine the complainant and his witnesses under Sections 200 and 202 Cr. P. C. (4) Whether the accused is entitled to any notice or opportunity of hearing at pre-cognizance stage.
(2.) IN the reference order His Lordship expressing his agreement with the earlier judgment in Pratap v. State of U. P. (supra) have observed that the judgment in Gajendra Agarwal (supra) needs reconsideration. The learned Government Advocate, assisted by Sri Sudhir Mehrotra, learned Additional Government Advocate at the outset informs that during the pendency of the reference and with the passage of more than a decade, since the order of reference, the aforesaid questions formulated are mostly answered by various judgments of Larger Bench of this Court or the Apex Court. We find that Gajendra Agarwal v. State of U. P. (supra) was considered by a Full Bench of this Court in Ranjit Singh and Ors. v. State of U. P. , 2000 (1) JIC 399 (All) (FB) : 2001 (1) Allahabad Criminal Rulings 1, and it has held in para 84 of the judgment that the view taken in Gajendra Agarwal's case (supra) does not lay down a correct law and accordingly overruled the same. Therefore, the judgment which has been referred for reconsideration under the reference order having already been overruled by the Full Bench, no further order need to be passed.
(3.) HOWEVER we find that besides doubting the correctness of the judgment in Gajendra Agarwal's case (supra), the reference order has specifically formulated four questions which need to be answered in the light of the relevant statutory provisions as well as law laid down by the Apex Court and this Court in various, cases. Once certain questions have been framed to be answered by the larger Bench, the same had to be answered and if the issue is already covered by some judgment of the Apex Court or any large Bench of the Apex Court, the issue will be answered accordingly. Therefore, we have proceeded to consider the aforesaid questions after hearing the learned Government Advocate and the Additional Government Advocate. None has appeared on behalf of applicants though this case was called twice. To understand the statutory provision pertaining to power of cognizance of the Magistrate as well as the situation arising out of filing of protest petition, it would be appropriate first to analyze, in brief, the statutory provisions as contained in the Code of Criminal Procedure, 1973 which are relevant for the issue.;