- (1.) MAITHLI Sharan, J. This is a peti tion under Section 482 Cr. P. C. invoking the inherent powers of this Court, moved by the petitioners for setting aside the impugned orders dated 21-4-97 Annexure No. 2 and 2-5-97 Annexure No. 1, passed by the Judi cial Magistrate II Gonda and Sessions Judge, Gonda.
(2.) THE brief facts of this case are thus: Opposite Party No. 4 Arif Anwar Hashmi lodged a first information report at the Police Station Sadulla Nagar, district Gonda on 24-6-90 against the petitioners for the offences under Sections 147, 148, 149, 307, 353, 504 and 506 I. P. C. and case Crime No. 69/90 was registered. THE inves tigation was done by the Police and it sub mitted the final report on 23-12-94. After the submission of the final report by the Police opposite party No. 4 Arif Anwar Hashmi submitted objection before the trial Court with the prayer that the ac cused/petitioners be summoned and the proceedings in accordance with law be started against them. THE learned trial Magistrate rejected the final report and summoned the petitioners for the aforesaid offences. THE petitioners submitted an ap plication before the Judicial Magistrate concerned, requesting therein that since the Police had submitted a final report in the case, hence the present case be treated as a complaint case and the trial of the case should be proceeded accordingly. THE said application of the petitioners was rejected by the trial Magistrate by the order dated 21-4-97. Aggrieved by the said order the petitioners filed criminal revision petition No. 136/97 before the Sessions Judge who also dismissed the revision petition. Now the petitioners have invoked the inherent powers of this Court under Section 482 Cr. PC. Ave heard the learned counsel on both the sides at length and hAve carefully gone through the record of the case. The summoning order of the Magistrate nowhere states that he had gone through the protest petition or the affidavit moved by the opposite party No. 4. It simply goes to indicate that since final report was led by the Police and the Magistrate con cerned thought it proper on the basis of the statements of the witnesses recorded by the Police under Section 161 Cr. P. C. to sum mon the accused/petitioners, hence only he passsed the said order dated 21-4-97, sum moning them. According to him the final report filed by the police was not proper as prima facie offences under Sections 147, 148, 149, 307, 353, 504 and 506 I. P. C. were made out against the accused persons.
(3.) LEARNED counsel for the petitioners has argued that since the summoning order was passed on the basis of the protest report, hence the Magistrate concerned should have proceeded with the case as a complaint case, and thus, the impugned order dated 21- 4-97 (Annexure No. 2) passed by him is illegal and further that the impugned order dated 2-5-97 passed by the Sessions Judge, Gonda in revision is also against law. I am afraid, the argument advanced by the learned counsel is not sound. Under Section 190 of the Code of Criminal Procedure the cognizance of the offence is taken by the Magistrate. The provisions engrafted under this Section run as 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 em powered 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 per son other than a police officer, or upon his own knowledge, that such offence has been com mitted. (2) The Chief Judicial Magistrate may em power any Magistrate of the secern class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. ";