- (1.) R. A. Misra, J. List revised. No one is appearing for the respondent. Heard learned counsel for the petitioner. This petition has been moved with the prayer that criminal proceedings Case No. 435 of 1986-State v. Mohd. Yusufand others, under Section 394, IPC pending in the court of 5th Addl. Munsif Magistrate, Lucknow be quashed.
(2.) FACTS which have been given in this petition are briefly stated as under:- Sri Ramanand Chauhan lodged a FIR Annexure-1 to the Supple mentary affidavit at the Police Station Naka Hindola against the petitioner Mohd. Yusuf, Sri Ram and Azad under Sections 323, 504 and 506, IPC and the crime was accordingly regibtered at the Police Station. On 26-8-1?86 the next day Ramanand moved an application in the Court of Munsif Magistrate under Section 15'- (3), Cr. P. C. with the allegations that his report has not been correctly recorded at the Police Station. Affidavits of Ramanand Chau han, Ashok Kumar and Manik Chand were filed along with that application. Learned Magistrate on a consideration of these affidavits and copy of the FIR filed along with that application arrived at the conclusion that the FIR dated 25-8-1986, Annexure-1 to the supplementary affidavit has been wrongly recorded. He, therefore, allowed the application of Ramanand Chauhan under Section 156 (3), Cr. P. C. and directed the Station Officer of the Police Station to register the crime under Section 394, IPC and investigate it as such. It so appears that in compliance to the aforesaid order of the learned Magistrate the Police Officers converged the crime under Section 394, IPC without making any amendment in the original FIR case was investigated by the directions of the Magistrate and Investigating Officer submitted final report in court on 3-9-86. Learned Magistrate then recorded statement of Ramanand Chauhan on 15-9-86 and of Ashok Kumar and Manik Chand on 19-9-1986, and on 7-10-1986 the learned Magistrate took cognizance of the case under Section 394, IPC against the petitioner rejecting the final report submitted by the Investigating Officer. The petitioner has felt aggrieved by this order and has come to this Court for quashing the proceedings. Facts stated above leave no room for doubt that the learned Magis trate has neither followed the procedure laid down for taking cognizance on police reports nor has he followed the procedure of complaint cases. The Police registered the crime under Sections 323, 504 and 506, IPC. Learned Magistrate could, while exercising his jurisdiction under Section 156 (3), direct the Investigating Officer to investigate the case as such but he could not him self, after taking into consideration the affidavits of the witnesses, arrive at the conclusion that an offence under Section 394, IPC is made out and that the crime should be registered under Section 394, IPC. If the Magistrate himself believes the witnesses of the complainant and the complianant's version and arrives at the finding of fact that an offence punishable under Section 394, IPC appears to have been made out, there remains nothing more for the Investigating Officer to investigate in the matter. On this finding of fact the Magistrate could treat the application of the complainant as a complaint and could straightway take cognizance but instead of doing so he directed the Station Officer of the Station to register a case under Section 394, IPC and that too without making any amendment in the FIR. The contents of the FIR, obviously, do not make out any case under Section 394, IPC. So the entire proceedings before the Magistrate are wholly misconceived. After receiving the final report he again proceeded to record statements of the witnesses under Section 164, Cr. P. C. before rejecting the final report and that is another error which has been committed by him. On receipt of the final report he was to examine only the material annexed with the final report to find out whether on the material collected by the Investigating Officer any case worth taking cognizance is made out. Instead of doing so he proceeded to collect further evidence in the shape of statement of witnesses under Section 164, Cr. P. C. to supplement the material along with the final report for taking cognizance. This is not permissible under law. In a Police case the Magis trate shall follow the procedure laid down for taking cognizance of police reports. He has a discretion where a protest application or an application in the nature submitted in the instant case is made, to treat it as a complaint to follow the procedure laid down for taking cognizance of a complaint case. In the instant case the Magistrate has created utter confusion and has neither clearly followed the procedure laid down in the Code for taking cognizance on police reports nor has he followed the procedure laid down in the code for taking cognizance in a complaint case. Entire proceedings are, therefore, vitiated and shall be quashed. The petition is consequently allowed and proceedings in Criminal Case No. 435 of 1986, State v. Mohd. Yusuf and others, under Section 394, IPC pending in the Court of 5th Additional Munsif Magistrate, Lucknow, are hereby quashed. Petition allowed. .;