- (1.) RAVINDRA Singh, J. Heard learned Counsel for the applicants and learned A. G. A.
(2.) THIS application has been filed with a prayer to quash the order dated 26. 6. 2007 passed by learned A. C. J. M, Bhadoi in Criminal case No. 171 of 2005 whereby the learned Magistrate concerned has taken the cognizance and summoned the applicant to face the trial for the offence punishable under sections 147, 323, 504, 506, 452 IPC. It is contended by learned Counsel for the applicant that O. P. No. 2 Smt. Saraswati Devi lodged the F. I. R. in case crime No. 46 of 2005 under sections 147, 323, 504, 506, 452 IPC, P. S. Suriyawan, District Sant Ravidas Nagar (Bhadoi), after investigation the final report dated 25. 2. 2005 was submitted in the Court of learned Magistrate concerned on which notice was issued to the complainant O. P. No. 2 on 31. 5. 2007. After receiving the notice the first informant O. P. No. 2 appeared before the Court concerned and filed a protest petition, the same was treated as a complaint by learned Magistrate concerned and next date for recording the statement of the first informant as complainant under section 200 Cr. P. C. was fixed, her statement was recorded, under section 200 Cr. P. C. on 9. 2. 2006, thereafter the next date was fixed for recording the statement of witnesses under section 202 Cr. P. C. For this purpose many dates were fixed but no statement under section 202 Cr. P. C. was recorded and for recording the statement under section 202 Cr. P. C. and without passing any order on final report, the learned Magistrate has taken the cognizance and summoned the applicant to face the trial for the offence punishable under sections 147, 323, 504, 506 and 452 IPC on 26. 6. 2007. The order dated 26. 6. 2007 is illegal and liable to be set aside. In reply of the above contention, it is submitted by learned A. G. A. that there is no illegality in the impugned order dated 26. 6. 2007, but it has been admitted that without recording the statement of the witness under section 202 Cr. P. C. for which many dates were fixed, the learned Magistrate has taken the cognizance and no order has been passed on the final report. Considering the facts, circumstances of the case, submissions made by learned Counsel for the applicants and learned A. G. A. and from the perusal of the record it appears that in the present case the learned Magistrate has not passed any order on the final report even the learned Magistrate has not perused the case diary and without any reason the protest petition has been treated as a complaint straightway and for recording the statement of the witnesses under section 202 Cr. P. C. many dates were fixed and without any reason the statement of the witnesses under section 202 Cr. P. C. have not been recorded and without recording the statement under section 202 Cr. P. C. the impugned order 26. 6. 2007 has been passed. It is settled position of the law that after investigation if any final report is submitted the learned Magistrate concerned is under obligation to peruse the material collected by the I. O. in case diary, if learned Magistrate concerned is satisfied with the conclusion drawn by the I. O. after perusing the case diary, the same may be accepted, or if after perusal of the case diary the learned Magistrate comes to the conclusion that on the basis of the material collected by the I. O. prima facie any offence is made out, the conclusion drawn by the I. O. submitting the final report may be rejected and cognizance may be taken. In case the learned Magistrate comes to the conclusion that for drawing any proper conclusion the further investigation is required, the order of further investigation may be passed or if after perusing the case diary the learned Magistrate comes to the conclusion that the protest petition may be treated as a complaint, the same may be treated as a complaint and procedure of the complaint case shall be followed. But in the present case for passing any order in respect of the conclusion drawn by the I. O. the learned Magistrate has not perused the case diary for which he was under obligation to do so, whereas the protest petition has been treated as a complaint straightway, it is not proper. The learned Magistrate has committed a manifest error by adopting such a procedure, the learned Magistrate has again committed the manifest error in passing the impugned order without recording the statement of the witnesses under section 202 Cr. P. C. The prescribed procedure for taking the cognizance in a complaint case has not been followed. The impugned order dated 26. 6. 2007 is illegal and is liable to be set aside. The impugned order is set aside on a technical ground, therefore, it is necessarily required to remit the matter to the Court of learned Magistrate concerned to pass a fresh order after perusing the case diary in accordance with provisions of law.
(3.) IN view of the above discussion, the impugned order dated 26. 6. 2007 passed by learned A. C. J. M. , Bhadohi in Criminal Case F. R. No. 171 of 2007 in case crime No. 46 of 2005, P. S. Suriyawan, District Sant Ravidas Nagar (Bhadohi) is set aside. The learned Magistrate concerned shall pass a fresh order in accordance with the provisions of law. With this direction, this application is finally disposed of. Application Disposed Of. .;