IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPLICATION NO.601 OF 2006 (U/s 482 Of Cr.P.C.) Mamchand …………Applicant Versus State of Uttaranchal & others …………Respondents Dated: August 3, 2010 Sri Navneet Kaushik, Adv. for the applicants Sri Amit Bhatt, Addl. GA for the State/respondent no.1 & 2 None for respondent no.3, though list has been revised HON. DHARAM VEER, J. This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the judgment and order dated 13.6.2006 passed by the Sessions Judge, Haridwar and order dated 1.4.2005 passed by the Special Judicial Magistrate, Roorkee, District Haridwar in Misc. Case No.91 of 2003, Km. Seema Vs. Mamchand. Heard learned counsel for the parties and perused the material on record. In nutshell, the facts of the case are that respondent no.3 lodged an FIR against the petitioner on the basis of which the case was registered u/s 354/452 IPC against the petitioner and the police after investigation, filed the final report. After that the complainant filed a protest petition along with which she filed affidavits of the witnesses, namely, Shamim Ahmed and Bachan Devi, on the basis of which learned Special JM Roorkee vide order dated 1.4.2005 quashed the Final Report and summoned the petitioner u/s 354/452 IPC. The petitioner subsequently preferred a revision which came to be dismissed by the Sessions Judge, Haridwar vide judgment and order dated 13.6.2006. Hence this petition. Learned counsel for the petitioner argued that the trial court has summoned the petitioner on the basis of the affidavits which is not permissible as per law inasmuchas there is no provision which provides for summoning on the basis of affidavits. Reliance is placed upon a 2 judgment of Hon’ble Apex Court in the case of Minu Kumar & another v. State of Bihar & others reported in (2006) 2 SCC (Cri) 310, wherein it has been held in para 11 as under: - “11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise: the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. (See India Carat (P) Ltd. v. State of Karnataka)” In the light of the aforesaid dictum, it is now a well settled position of law that when a report is submitted before the Magistrate by the police according to which no offence appears to have been committed, in that case a Magistrate has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that 3 there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). However none of these provides that the Magistrate may pass any order on the basis of affidavit. In the instant case, the learned Magistrate has held that there is a prima facie case against the petitioner on the basis of the affidavits of Shamim Ahmed and Bachan Devi and on the basis of those affidavits, the Magistrate took cognizance and summoned the petitioners u/s 354/452 IPC. The Magistrate ought to have directed the complainant to produce the witnesses under Section 200 and 202 Cr.P.C., if the Magistrate was of the view that the correct statements had not been recorded. As such in light of the proposition of law, the summoning order passed by the trial court on the basis of the affidavits as well as the revisional order are bad in the eye of law and are accordingly quashed. For the reasons as aforesaid, C482 petition is allowed. Order dated 1.4.2005 passed by the Special J.M. Roorkee and the judgment and order dated 13.6.2006 passed by the Sessions Judge, Haridwar are quashed. The matter is sent back to the Trial Court concerned with the directions to decide the matter afresh in accordance with law in the light of the observations made above. (Dharam Veer, J.) August 3, 2010 Rdang