Virendra Kumar Gupta & Ors. v. State of Uttaranchal & Ors.

01.2003 at 9: 00 pm t hat t he applicant s had beat en t he com plainant and his w ife on t he road. Sm t . Sushm a was m edically exam ined in Govt . Hospit al, Haridwar and t hereaft er t he supplem ent ary m edical report of t he v ict im was prepared by t he Medical Officer. Lat er on t he m at t er was convert ed u/ s 376 I .P.C. The m at t er was invest igat ed and t he final report was subm it t ed. Feeling aggrieved by t he said final report , t he com plainant preferred t he pr ot est pet it ion before t he learned C. J. M. alongw it h affidav it s. The com plainant filed t he affidav it s of him self and his w ife. Aft er appraisal of t he ev idence t he learned Magist rat e sum m oned t he accused u/ s 323 and 376 I .P.C. Feeling aggr ieved by t he said or der, cr im inal rev ision was preferred before t he Sessions Judge and it was dism issed by t he learned Sessions Judge. Thereaft er, t he present pet it ion has been filed.

Learned counsel for t he applicant s cont ended t hat t he learned Magist rat e while t ak ing t he cognizance had considered t he affidav it s filed by t he com plainant s. I t was furt her cont ended t hat t he affidav it s cannot be considered by t he court below while t ak ing t he cognizance. I n t he inst ant case, t he Magist rat e had t aken t he cognizance on t he basis of t he affidav it s filed by t he com plainant . The affidav it s filed by t he com plainant cannot be t aken int o considerat ion. I f t he Magist rat e w as not sat isfied w it h t he evidence. He had t wo opt ions t o consider t he said prot est pet it ion as a com plaint and t hereaft er proceed w it h t he case according t o t he law. The Magist rat e had not t aken t he recourse which was available t o him as such t he order passed by t he Magist rat e is bad in law. A sim ilar v iew has been t aken by t his court in Cr i m i n a l M i s c.

A p p l i ca t i o n N o . 1 3 5 o f 2 0 0 6 , Vi j a y K u m a r Si n g h V s. St a t e o f Ut t a r a n c h a l a n d a n o t h e r d a t e d 2 8 t h Fe b r u a r y , 2 0 0 6 . I n v iew of t he above, t he sum m oning order dat ed 29.01.2004 passed by t he Learned Chief Judicial Magist rat e, Haridwar in Crim inal Case No. 729 of 2004 St at e Vs. Ant i & ot hers u/ s 323, 376 I .P.C., Police St at ion – Ranipur, Dist r ict – Haridwar is set aside and t he m at t er is rem anded t o t he learned Magist rat e t o dispose of t he case in t he light of t he observat ion m ade above. Wit h t he aforesaid observat ion, t he pet it ion is disposed of accordingly. All applicat ions pending in t his case are st and disposed of in t erm s of t he j udgm ent . 27 t h April, 2006 Shiv ( J.C.S. Ra w a t , J.)