Court No. - 34
Case :- APPLICATION U/S 482 No. - 17083 of 2005 Applicant :- M/S Bareilly Flour Mills Pvt. Ltd. Opposite Party :- State of U.P. and Another Counsel for Applicant :- P.C. Srivastava,B.C.Rai Counsel for Opposite Party :- Govt. Advocate,Ranjit Saxena
Hon'ble Sudhir Agarwal,J.
1. Heard Sri B.C.Rai, learned counsel for applicant and learned A.G.A. for State of U.P.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to stay further proceedings in Case No.185 of 2001 under Section 39/40 of Indian Electricity Act, 1910 (hereinafter referred to as "Act, 1910") pending in the Court of Addtional Chief Judicial Magistrate-Ist, Bareilly, District Bareilly as well as effect and operation of orders dated 08.03.2001 and 15.09.2005 passed by Court below.
3. It is contended that along with Protest Petition filed by complainant against Final Report, submitted by Investigating Officer, some affidavits were filed which have been considered by Magistrate and thereafter final report has been rejected. The argument is that no external evidence can be seen by Magistrate for accepting or rejecting final report. Reliance is placed on Pakhando and others Vs. State of U.P. and another 2001 (43) ACC 1096 and Harkesh and others Vs. State of U.P. and another 2001 (43) ACC 720.
4. This Court in Hare Ram and others vs. State of U.P. and another, 2016 (95) ACC 156 has held that when police has submitted final report and a protest petition filed, Magistrate cannot proceed in the matter as police case, if he considered the material placed before him along with protest petition and if he considered such material, he has to proceed in the matter as a complaint case and not as a police case. If Magistrate relied on the affidavit filed alongwith protest petition and still proceeded with matter as police case, such course adopted by Magistrate is clearly impermissible.
5. Similar view has been taken in the case of Manoj Kumar Singh and others Vs. State of U.P. and another, 2007 (3) JIC 591 (All), wherein this Court has held as under:
"Where the Magistrate decides to take cognizance under Section 190(1)(b) of the Code on the basis of final report he can act upon the statements of the witnesses recorded by the Investigating Officer in the case-diary and material collected by him during investigation. It is not permissible to consider any material other than that collected by the Investigation Officer. In the instant case cognizance was taken on the basis of protest petition and accompanying affidavits. In such a situation the Magistrate should have adopted the procedure of complaint case as contemplated under Chapter XV of the Code and recorded the statements of the complainant and witnesses under Sections 200 and 202 of the Code. The Magistrate having taken cognizance under Section 190 (1) (b) of the Code after taking into consideration the facts stated in the protest petition and accompanying affidavits, the impugned order is against the settled legal position."
5. Learned AGA could not dispute aforesaid law as has been held in the case cited above.
6. In view thereof, application succeeds and is allowed. Impugned orders dated 08.03.2001 and 15.09.2005 passed by Court below are set aside. Matter is remanded to Magistrate concerned for passing fresh order in accordance with law.
Order Date :- 27.11.2019 Ashish Pd./AK