The Allahabad High Court has quashed and set aside the summons issued by the Chief Judicial Magistrate, Lalitpur in the case of rape and SC/ST Act as illegal.
A single-judge bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under Section 482 filed by Bhupendra Jain and others.
The Court noted that it is a case of 2007 and it is not decided finally even after 15 years. The application was filed on behalf of applicants challenging a summoning order dated 04.07.2007 for the offence under Section 376/506 IPC and Section 3(1)(12) of SC/ST Act.
The fact of the case further discloses that an FIR was lodged by the respondents against the applicants on 27.12.2002 bearing FIR at Police Station Hazratganj, District Lucknow under above referred offences. However, after investigation, a final report was submitted as the allegations were found to be untrue and was submitted before the Chief Judicial Magistrate.
The Chief Judicial Magistrate, before accepting the final report, informed the complainant who filed a protest petition dated 24.03.2004 along with her affidavit. The Chief Judicial Magistrate also recorded her statement on oath on 23.04.2004 wherein she supported the allegations made in the FIR.
The Chief Judicial Magistrate, Lalitpur on the basis of the contents of the protest petition, affidavit filed by the complainant as well as statement recorded on oath rejected the final report and issued summon under Section 190(1)(b) CrPC after taking cognizance of an offence allegedly committed by them under Section 376/506 IPC and 3(1)(12) of SC/ST Act by an order dated 04.07.2007.
This application was filed before the Court on 29.08.2007 and the Court vide an order dated 11.09.2007 finds that the matter requires consideration and passed an interim order whereby the further proceedings arising out of impugned order were stayed. The application was thereafter on 12.09.2011 dismissed in default. After many years, in the year 2017, a restoration application was filed which finally allowed an order dated 24.04.2018 and the interim order was also restored. Thereafter, the matter remained pending before the Court.
Ved Prakash Ojha, counsel for the applicants, submitted that the procedure adopted by the Chief Judicial Magistrate to issue summon under Section 190(1)(b) CrPC after taking consideration the materials other than available along with the final report, such as protest petition, affidavit filed by the complainant and her statement on oath, is a procedural irregularity as it is a settled law that in such case, the Court has to adopt the procedure prescribed under Chapter XV of CrPC to record the statement of the complainant under Section 200 CrPC and of the victim under Section 202 CrPC and only thereafter the summon can be issued if a case is made out and for that he placed reliance upon a judgment passed by the coordinate Bench of the Court in Application u/s 482 (Wakil Ahmad and others Vs State of UP and another) decided on 06.03.2020.
The AGA for the State as well as S.C. Jaiswal, counsel appearing for the respondents, has not been able to contradict the submissions of fact as well as on law.
The Court observed,
In the case, undisputedly, the trial court has taken into consideration the materials which were not available along with the final report submitted by police, such as, protest petition, affidavit filed by the complainant as well as her statement recorded on oath and only thereafter, he took cognizance of the offence and issued summon under Section 190(1)(b) of CrPC which is against the teeth of Wakil Ahmad (supra) wherein the coordinate Bench, after considering the judgment passed by the Supreme Court in the cases of Tula Ram Vs Kishore Singh, AIR 1977 SC 2401, M/s India Carat Pvt Ltd Vs State of Karnataka, 1989 (26) ACC 280 (SC), Gangadhar Janardan Mhatre Vs State of Maharashtra and others, 2004 (7) SCC 768, Rakesh and another Vs State of U.P and another, 2014 (13) SCC 13, Minu Kumari and another Vs State of Bihar and others, 2006 (4) SCC 359, In Pakhando and others Vs State of U.P and another, 2001 (43) ACC 1096 and in Mohammad Yusuf Vs. State of U.P, 2007 (9) ADJ 294, reiterated that “Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 CrPC. The Magistrate could not take cognizance under section 190 (1) (b) CrPC on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e protest petition and affidavits while taking cognizance under section 190 (1) (b) CrPC the impugned order is vitiated.”
“In view of above discussed facts and law, the impugned summoning order is illegal. Therefore, it is quashed and set aside. However, the Magistrate now shall proceed with the stage of consideration of the final report submitted by police and the protest petition filed by the complainant and pass appropriate order in accordance with law,” the order reads.