Quashed

Kamal Dev v. State of U.P.and Anr.

Allahabad HC25 Nov 2021A482/9033/2009

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the High Court quashed a summoning order dated 10.02.2009 because the Magistrate considered material from a protest petition alongside the investigation record. The Court held that unless the complaint case procedure was adopted, a Magistrate cannot use material other than the investigation record to summon an accused, remanding the matter pass a fresh

What did the court decide?

The summoning order dated 10.02.2009 was set aside and the matter remitted to the learned Magistrate to pass a fresh order.

Kamal Dev Vs State of U.P.and Anr. — Civil Procedure and Limitation | Allahabad HC (2021)

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Court No. - 42

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Case :- APPLICATION U/S 482 No. - 9033 of 2009

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Applicant :- Kamal Dev Opposite Party :- State Of U.P.And Anr Counsel for Applicant :- S.S. Tripathi,A.P. Tiwari Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Vinay Kumar Jaiswal, Advocate, holding brief of Sri A.P. Tiwari, learned counsel for the applicant and learned A.G.A. for the State.

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The present 482 Cr.P.C. application has been filed to quash the summoning order dated 10.02.2009 as well as the entire proceedings of Case No. 227 of 2009 (Kanti Devi Vs. Kamal Dev), under Sections - 279 and 304-A I.P.C., Police Station - Ughaiti, District - Budaun, pending in the court of Judicial Magistrate, Bisauli.

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Learned counsel for the applicant submits, though closure report had been submitted by the police, upon due investigation the learned Magistrate has erred in summoning the applicant by relying on the material brought before him by means of the protest petition filed by the first informant. Also, it has been submitted, the occurrence was a pure accidental occurrence which has been needlessly drawn into a criminal prosecution.

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On the other hand, learned AGA has submitted, though mention has been made to other material brought before the learned Magistrate, at the same time, while passing the summoning order, the learned Magistrate has not referred to any material that may have been brought on record before him by means of the protest petition.

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Having heard learned counsel for the parties and having perused the record, the position in law in this regard stands clarified and firmly established by a Division

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Bench decision of this Court in Pakhando & Ors. Vs. State of U.P. & Anr.; 2001 (43) ACC 1096 wherein paragraph 16 of the decision it was observed as under:

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" 16. Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200."

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Thus, though in a given set of facts upon submission of a closure report, a protest petition may also come to be filed before the concerned Magistrate before he takes up for consideration and passes orders on the closure report and though it may remain open to the said learned Magistrate to pass an order summoning the accused persons upon consideration of the material available on the case diary, at the same time, he cannot "make use of material other than investigation record" for the purposes of summoning the accused unless he were to first adopt the complaint case procedure. In that event, statements under Sections 200 and 202 Cr.P.C. would become necessary to be recorded before summoning order may come into existence.

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Applying the aforesaid test laid down by the Division

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Bench to the facts of the present case, it appears while issuing the summoning order, the learned Magistrate has clearly taken into account the case diary material and also other material brought before him alongwith the protest petition. Having done that, the learned Magistrate could not have summoned the applicant under Section 119(1) (b) of the Cr.P.C.

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Accordingly, the the summoning order dated 10.02.2009 is set aside. The matter is remitted to the learned Magistrate to pass a fresh order, keeping in mind the observations made above.

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The Court records its appreciation of Sri Amit Mishra and Sri Gaurav Kakkar, Advocates, who have pointed out the correct position in law to the Court.

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Present application stands disposed of with the aforesaid directions.

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Order Date :- 25.11.2021 Abhilash

Kamal Dev v. State of U.P.and Anr.

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Kamal Dev v. State of U.P.and Anr.

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