This criminal revision held that a Magistrate cannot take cognizance under Section 190(1)(b) Cr.P.C. solely on a protest petition and affidavit without a police report. The impugned order summoning accused based on such evidence was quashed.
Impugned order of 27.01.1993 set aside; trial court directed to pass fresh order within 90 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 28
Case :- CRIMINAL REVISION No. - 142 of 1994
Revisionist :- Shiva Kumar And Others Opposite Party :- State And Another Counsel for Revisionist :- S.S. Rathore Counsel for Opposite Party :- A.G.A.
Hon'ble Umesh Chandra Tripathi,J.
List has been revised. None is present on behalf of the revisionists and opposite party no. 2 to argue the case. However, learned A.G.A. for the State of U.P. is present.
Heard learned A.G.A. for the State.
This revision has been preferred against the order dated 27.01.1993 passed by Munsif Magistrate Ist (Corporation), Kanpur Nagar arising out of Case Crime No. 192 of 1993 under Sections 147, 452, 323, 504 and 506 of the Indian Penal Code (in short 'IPC'), Police Station - Bithoor, District - Kanpur Nagar. Vide impugned order, the accused-revisionists were summoned for the offence punishable under Sections 147, 452, 323, 504 506 IPC.
Brief facts of the case are that in the aforesaid case crime number, the police had submitted final report under Section 173 (2) of the Code of Criminal Procedure (in short 'Cr.P.C.') before the Magistrate. Complainant filed protest petition against the F.R. submitted by the police. On the basis of the protest petition filed by complainant, learned trial court has passed the impugned order under Section 190(1)(b) of Cr.P.C.
Perused the impugned order. The learned Magistrate may take cognizance under Section 190(1)(b) of Cr.P.C. only on the basis of police report submitted under Section 173(2) of Cr.P.C. There is no provision in Cr.P.C. to submit affidavit in support of prosecution version. From the perusal of impugned order, it is revealed that learned Magistrate had taken cognizance only on the basis of protest petition and affidavit filed by complainant, which is against law.
Resultantly, the instant revision is allowed . Impugned order dated 27.01.1993 passed by Munsif Magistrate Ist (Corporation), Kanpur Nagar is hereby set aside. Learned trial court is directed to pass fresh order within 90 days from the date of receipt of certified copy of this order.
Let a certified copy of this order be provided to the court below for intimation and necessary compliance.
Order Date :- 9.5.2018 I. Batabyal
2 issues framed by the court
Whether a Magistrate can take cognizance under Section 190(1)(b) Cr.P.C. on the basis of a protest petition and affidavit without a police report.
Whether submission of affidavit in support of prosecution version is permissible under Cr.P.C.
2 provisions across 1 enactments
Shiva Kumar And Others
State
Another
Umesh Chandra Tripathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
