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Shakuntala Tyagi Vs. State of U.P. and Ors. - (High Court of Allahabad) (07 Mar 2019)

Order whereby cognizance of offence has been taken by the Magistrate should not be interfered with, unless it is perverse or based on no material

MANU/UP/0717/2019

Criminal

Present application under Section 482 of Code of Criminal Procedure, 1973 (CrPC) has been filed by the Applicant with the request to quash the summoning order passed by learned Judicial Magistrate, and quash the further proceedings of Case Crime under Section 409 of IPC at Police Station in pending in the Court of Judicial Magistrate. The applicant requested to accept the final report dated 22nd February, 2001 submitted by Investigating Officer and stay the entire proceedings in Case Crime under Section 409 of IPC.

Learned Apex Court in Tularam versus Kishore Singh held that, Magistrate can ignore the final report submitted by police including conclusion and take cognizance of case under Section 190(1) of CrPC, on the basis of material collected during investigation and issue process or in the alternative, he may take cognizance of original complaint and examine the complainant and his witness and thereafter issue process to accused, if he is of opinion that case should be proceeded with.

In the present case, Magistrate has passed the order with regard to material collected by Investigating Officer. During investigation, Magistrate clearly stated in his order that, on perusal of C.D, it transpired that complainant supported his version in statement under Section 161 of CrPC. It is wrong to say that, the Magistrate summoned the applicant only on the basis of affidavit. But Magistrate summoned the applicant on the basis of material collected by Investigating Officer during investigation.

In Dr. Nupur Talwar vs. C.B.I. Delhi & another where the Magistrate while rejecting the final report submitted by Investigating Officer had taken cognizance under Section 190(1)(b) of Cr.P.C. It has been held by the Hon'ble Supreme Court that "order whereby cognizance of offence has been taken by the Magistrate should not be interfered with unless it is perverse or based on no material; Superior Court should exercise utmost restraint and caution before interfering with an order of taking cognizance by the Magistrate otherwise the holding of trial will be stalled. Superior Court should maintain this restrain to uphold the rule or law and sustain the faith of the common man in the administration of justice.

In present case, affidavit placed before Magistrate along with protest petition and learned Magistrate find that, final report is liable to be rejected. Magistrate has given proper reason for rejecting the police report and perusing the evidence recorded by police officer in case diary and on the basis of evidence recorded in case diary and perusing the statement on case diary summon the accused. In this regard, approach of the Magistrate is legal. There is no illegality or irregularity in the order passed by learned Magistrate. Learned trial court directed to decide the case expeditiously without unnecessary adjournment. Accordingly, present application under Section 482 is disposed of.

Relevant : Dr. Mrs. Nupur Talwar vs. C.B.I., Delhi and Anr. MANU/SC/0009/2012 , Tularam versus Kishore Singh

Tags : COGNIZANCE   PROCEEDINGS   FINAL REPORT  

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