IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 474/2004 Padam Lal ….Petitioner Vs. State of Uttaranchal & another ……. Respondents Mr. R.P. Nautiyal, learned counsel for the petitioner. Sri. S.S. Adhikari, learned A.G.A. for the State. None has appeared for respondent No. 2. Dated: 18-05-2010 [Hon’ble B.C. Kandpal, J. (Oral)] By way of this petition, U/S 482 Cr.P.C., the petitioner has challenged the summoning order dated 5.2.2001, passed by Judicial Magistrate Karanprayag, in Criminal Case NO. 92 of 21001, State Vs Anand Singh and another, U/Ss 302 and 201 I.P.C. Brief facts of the case are that on 25.5.1993 a female body was found near Alaknanda Nandakini river in Nandprayag. That body was in decayed condition and one Pratap Singh identified the same as the dead body of Smt. Hira wife of co-accused Anand Singh and later on Deewan Singh respondent No. 2, brother of the deceased, also indentified that dead body. Then Deewan Singh moved an application to S.S.P. Chamoli on 23.8.1993 for the investigation of the case. on the direction S.S.P. Chamoli F.I.R. was lodged against co-accused Anand Singh, his father and the present petitioner. After investigation, the investigating agency, submitted final report in the matter. The learned C.J.M. Chamoli issued notices to respondent No. 2 on the final report, who filed a protest petition. The learned Magistrate after hearing parties on protest petition, rejected the protest petition, and accepted the final report vide order dated 21.6.1996. Thereafter on 5.2.2001 the Judicial Magistrate, Karanprayag again passed an order rejecting the final report and taking cognizance against the accused persons. Against the above summoning order the petitioner filed a mis. Criminal revision NOo. 6/2004, Padam Lal vs. State in the Court of Sessions Judge, Chamoli, along with an application U/S 5 Limitation Act for condonation of delay. The revisional court vide its order dated 30-9-2004, did not entertain the revision on the ground that the revision was time barred. Now feeling aggrieved by the summoning order dated 5.2.2001 passed by Judicial Magistrate, Karanprayag, the petitioner has preferred this petition for setting aside the summoning order as well as quashing the proceeding of Criminal Case No. 92/2001, State vs. Anand Singh and another, against him. Heard learned counsel for the parties and perused the record. Learned counsel for the petitioner has submitted that the protest petition filed by the respondent No. 2 against the final report, was rejected by learned C.J.M. on merit and there was no justification for the learned judicial Magistrate to reject the final report and to take cognizance against the petitioner on the same material available on record. I do not find any substance in the above submission of learned counsel for the petitioner. From perusal of record it reveals that the C.J.M. Chamoli vide order dated 21-6-1996 has rejected the protest petition against the final report submitted by the police after investigation. The learned C.J.M. took the view that the identification of dead body after a gap of over one month was doubtful as disfiguration of the dead body was certain. There was also no evidence of ill-treatment. It appears that against the above order of rejection of protest petition, revision was filed before the learned Sessions Judge, and the learned Sessions Judge, vide its order dated 2-9-1998, directed the learned Magistrate to pass fresh order on the final report submitted by police after perusing entire material and evidence collected by police in the case diary and thereafter the learned Judical Magistrate after perusing the case diary and the contents of protest petition filed by respondent No. 2, rejected the final report and allowed the protest petition, thereby taking cognizance against the accused persons. In the above facts and circumstances of the case, the learned Magistrate was well within his jurisdiction in passing the order of summoning. Perusal of summoning order reveals that the learned Magistrate passed a detailed order and has recorded the grounds of his satisfaction for finding a prima facie case and taking cognizance against the accused persons. I do not find any grounds for interference in the above order passed by the learned Magistrate. I find no flagrant injustice and abuse of process of court in this case. This court is also not supposed to act as a trial judge, where the evidence is still incomplete and hazy. I am not supposed to embark upon an enquiry with regard to credibility of evidence art this stage. The Petitioner will have an opportunity to place the evidence in his defence before the trial court where the matter shall be finally adjudicated after considering the entire evidence. I do not find any merit in this petition and the same is liable to be dismissed. Accordingly, the petition is dismissed. The interim order dated 27.10.2004, stands vacated. (B.C. Kandpal, J.) ISB