The court emphasized the requirement for the learned Magistrate to provide reasons for differing with the final form.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Arun Kumar, learned counsel appearing for the petitioners, Mr. Santosh Kumar Shukla, learned A.P.P. appearing for the State and Mr. Gautam Kumar, learned counsel appearing for the O.P. No. 2.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. This petition has been filed for quashing of the order dated 14.11.2014 passed by the learned Additional Chief Judicial Magistrate, Bermo at Tenughat, in C.P. Case No. 446 of 2013, whereby cognizance under Sections 341, 323 and 504 of the Indian Penal Code has been taken against the petitioners, pending in the Court of learned Additional Chief Judicial Magistrate, Bermo at Tenughat.

4. The complaint case is arising from the protest petition against the final form submitted by the police, in connection with Gandhinagar (Bermo) P.S. Case No. 91 of 2010, wherein it has been stated that on 07.06.2010 at about 7.00 P.M., the complainant/O.P. No. 2 was going to attend a marriage and on the way accused persons intercepted and abused him but the witnesses pacified. It is further stated that on the next day, i.e. 08.06.2010 in the morning all the accused persons again entered into the house of the complainant/O.P. No. 2 with planning and assaulted him and his wife. The petitioner No. 1 (Rashid Ansari) snatched gold earring of wife of O.P. No. 2 and the petitioner No. 2 snatched Rs. 2500/- from the pocket of the O.P. No. 2 and run away.

5. Learned counsel appearing for the petitioners submits that the case is arising out of a protest petition, in which, final form has been submitted on 10.06.2010 and the protest petition was filed on 31.08.2010 and the cognizance was taken on 14.11.2014, as such the petitioners are entitled for the benefit of Section 468 Cr.P.C. He further submits that there is no reason in the cognizance order as to why the court is differing with the final form.

6. Learned counsel appearing for the O.P. No. 2 submits that so far as the benefit under Section 468 Cr.P.C. is concerned, this is not applicable in the present case, as this point is fully governed by the judgment of the Hon’ble Apex Court in the case of Mrs. Sarah Mathew vs. The Institute of Cardio Vascular Diseases by its Director, (2014) Cri. L.J. 586.

7. The Court has perused the cognizance order dated 14.11.2014. It is well settled that it is within the domain of the learned Magistrate is to differ with the final form and also to take cognizance, on the basis of the materials available on record, but by differing with the final form, the learned Court is required to give the reasons. Such reasons have not been disclosed in the cognizance order.

8. In view of the above, the order dated 14.11.2014 passed by the learned Additional Chief Judicial Magistrate, Bermo at Tenughat, in C.P. Case No. 446 of 2013, whereby cognizance under Sections 341, 323 and 504 of the Indian Penal Code has been taken against the petitioners, pending in the Court of learned Additional Chief Judicial Magistrate, Bermo at Tenughat, is hereby, quashed and set aside. The matter is remitted back to the concerned Court to pass a afresh order in the light of the discussions made hereinabove. The learned Magistrate will also examine the benefit under Section 468 Cr.P.C. and also consider the judgment relied by Mr. Gautam Kumar, learned counsel appearing for the O.P. No 2.

9. Accordingly, this criminal miscellaneous petition is allowed and disposed of.

10. The interim order is vacated.