IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 926/2005 Naresh Kumar …….Petitioner Versus State of Uttaranchal & Ors. …….Respondents August 13, 2010 Hon’ble Dharam Veer, J. Heard Mr. Parikshit Saini, Advocate for the petitioner, Mr. Amit Bhatt, Addl. GA for the State and Mr. Ajay Veer Pundir, Advocate for the respondent no. 4. This petition under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC) has been filed for quashing the summoning order dated 19.9.2005 as well as the entire proceedings of Criminal Case No. 600/2005, State v. Naresh & Anr. under Section 406 IPC and Section 10 of UP Rural and HillForest Conservation Act, 1976 pending in the Court of Ist Additional Civil Judge (Jr. Div.), Roorkee. Petitioner has also prayed to quash the revisional order dated 17.11.2005 passed by the Sessions Judge, Haridwar in Criminal Revison No. 139/2005 preferred by the petitioner against the aforesaid summoning order. Facts, in brief, are that respondent no. 4 Yesh Vir Singh lodged a complaint under Section 156(3) CrPC on 19.2.2002 before the ACJM, Roorkee with the averments that he is a member Management Committee of Prem Vidyalaya Sabha Gurukul Narsan and the petitioner is its Secretary and co- accused Jaipal Singh is its President. Petitioner and the another co-accused were given the responsibility to look after and protect the movable and immovable assets of Prem Vidyalaya Sabha. It was further alleged that in the night of 21.22.3.2002 petitioner and the another co-accused cut 13 shisham trees situated on the agricultural farm land of the said Sabha without permission of the Executive Committee of the said Sabha. Three shisham trees were sold by them while ten were lying cut on the spot. Thus they have committed an offence for breach of trust and violated the provision of UP Rural and Hill Forest Conservation Act, 1976. On this complainant, learned Magistrate ordered for lodging of the FIR on 10.3.2002. Thereafter the FIR was lodged on the same day. The matter was investigated and on 28.5.2005, final report was submitted by the Investigating Officer. After the submission of the final report, notice was issued to the complainant/respondent no. 4, who filed a protest petition against the final report and submitted his affidavit as well as the affidavits of other witnesses. Thereafter learned Magistrate heard on the protest petition and considered the affidavits among other materials and thereafter allowed the said protest application vide impugned order dated 19.9.2005 and summoned the petitioner and ordered that the case shall be treated as State Case. Feeling aggrieved, the petitioner preferred a criminal revision, which was dismissed in limine by the Sessions Judge, Haridwar vide judgment and order dated 17.11.2005. Hence, this petition has been filed by the petitioner. Learned Counsel for the petitioner argued that the trial court has summoned the petitioner on the basis of the materials which also included the affidavits which is not permissible as per law inasmuch as there is no provision under the law which provides for taking cognizance of offence on the basis of the affidavits submitted along with the protest petition in response to the final report. Reliance has been placed on the judgment of Allahabad High Court delivered in the case of Mathura Prasad & Ors. v. State of U.P. & Anr. reported in 2007 (1) ALJ (DB), wherein the Hob’ble Court has considered the questions (i) whether it will make any difference if the protest petition is accompanied by some affidavit or similar other documents and (ii) when cognizance is taken on the basis of protest petition and accompanying documents, will the same be invalid on account of omission to examine the complainant and his witnesses under Section 200 and 202 CrPC and has answered these questions in para 16 of the judgment, which is quoted as under: 2 “So far as the question Nos. 2 & 3 are concerned, we are of the view that if the Magistrate after receiving protest petition and considering the police report if proceed to take cognizance under Section 190(1)(b) and issue process, he cannot look into any material placed before him along with protest petition except the material collected by the police and placed before him along with the report. However, if he treats the protest petition as complaint and proceeds to record statement of the complainant and the witnesses and thereafter issue process, the evidence placed before him along with protest petition may be relevant and be considered by him. The reason for taking this view is where the Magistrate decide to take cognizance of a case under Section 190(1)(b) ignoring the conclusion arrived at by the investigating agency and by applying his own mind on the facts available on investigation record, he is not bound to follow the procedure laid down in Sections 200 and 202 of the Code and consequently proviso to Section 202(2) also would have no application. In such case a Magistrate can form his opinion only on the statement of the witnesses recorded by the police in the case diary and other material collected during his investigation and it is not permissible for him at this stage to look into any material other than investigation record unless it decides to take cognizance under Section 190(1) (a) of the Code.” Undisputedly, the complainant/respondent no. 4 filed his affidavit as well as the affidavits of his witnesses along with the protest petition and learned Magistrate considered the same while taking the cognizance of the offence against the petitioner and summoned him to face the trial, which is against the spirit of law as has been discussed supra that if the Magistrate after receiving protest petition and considering the police report, proceed to take cognizance under Section 190(1)(b) and issue 3 process, he cannot look into any material placed before him along with protest petition except the material collected by the police and placed before him along with the report. In the instant case, the Magistrate ought to have directed the complainant to produce the witnesses under Section 200 and 202 CrPC, if the Magistrate was of the view that the correct statements have not been recorded and then the evidence placed before him along with protest petition may be relevant and can be considered by him. For the reasons recorded above and in view of the legal proposition discussed supra, the impugned summoning order dated 19.9.2005 and the revisional order dated 17.11.2005 are not correct and justified and the same are liable to be quashed. Resultantly, the instant C482 petition is allowed. Summoning order dated 19.9.2005 passed by the Ist Additional Civil Judge (Jr. Div.), Roorkee and revisional order dated 17.11.2005 passed by the Sessions Judge, Haridwar are hereby quashed. Matter is remanded back to the trial court with direction to decide the matter afresh in accordance with law and in the light of the observations made above. (Dharam Veer, J.) 13.8.2010 PRABODH 4