- (1.) MRS. Poonam Srivastava, J. Heard learned Counsel for the petitioner and learned A. G. A. for the State.
(2.) THE prayer in the instant writ petition is to quash the proceedings of case No. 96/ix/2001, Charan Singh v. Navin Kumar and Anr. , arising out of case crime No. 25 of 2001, under Sections 406, 420, 120-B I. P. C. Police Station Chhata, District Mathura and also to quash the order dated 5-12- 2003 passed by the Magistrate (1st Class) Chhata, Mathura confirmed in revision on 23-11-2006 by the Assistant Sessions Judge (Court No. 1), Mathura. The facts of the case are, an application under Section 156 (3) Cr. P. C. was filed by the complainant. The Magistrate passed an order on 23-2-2001 to register a case against the Secretary of the Co- operative Cane Development Society and Executive Director/authority of Chhata Sugar Company Limited (petitioner ). A First Information Report was registered against the petitioner and Navin Kumar Secretary. The police investigated the matter and submitted a final report after arriving at a conclusion that the offence alleged in the report does not appear to be committed by both the accused. The complainant, respondent No. 2 filed a protest petition which was numbered as 4-B. The Magistrate by means of the order dated 5-12-2003 accepted the final report and passed an order treating the protest petition as a complaint and fixed a date for recording the statement under Section 200 Cr. P. C. This order was challenged in a criminal revision which was dismissed on 23-11-2006 by the Incharge Sessions Judge (A. S. J.) Court No. 1, Mathura with an observation that since the statement of the first informant has already been recorded under Section 200 Cr. P. C. therefore, the order impugned in the said revision stood complied. Learned Counsel for the petitioner has annexed the statement of one of the witnesses under Section 202 Cr. P. C. recorded on 27- 2-2004 vide Annexure-9 to the writ petition. Reliance has been placed by the learned Counsel on a decision of the Apex Court in the case of Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. , 2005 (1) JIC 202 (SC) : 2004 (5) A. C. C. 650. The submission on the basis of the aforesaid decision is that in the event, the police report is submitted on the basis of conclusion that no offence appears to have been committed by the accused, the Magistrate could (i) either accept the report and drop the proceedings or (ii) disagree with the report and take the view that there are sufficient ground to take cognizance or (iii) to ask for further investigation by the police. Since the Magistrate has accepted the final report, he could not treat the protest petition as a complaint and proceed to record the statements under Sections 200 and 202 Cr. P. C.
(3.) AFTER hearing the Counsel for the parties at length and going through the decision relied upon by the learned Counsel for the petitioner, it is apparent that the order impugned in the instant writ petition is the decision of the Magistrate to proceed as a complaint case and record the statement of the complainant and witnesses. The statements have been recorded but no orders have been passed taking cognizance. It is thus clear that final orders are yet to be passed and on perusal of the decision cited above, the stage has not yet arrived and the Magistrate has not passed any order taking cognizance. Chapter XVI of the Code deals with "commencement of proceedings before the Magistrate" and Section 204 Cr. P. C. empowers a Magistrate to issue summons or a warrant as the case may be, to secure the attendance of the accused. Section 190 (1) Cr. P. C. provides cognizance of an offence by Magistrate which is quoted below: "190. Cognizance of offences by Magistrate.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence : (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. ";