Point of Law: When information of a cognizable offence is received or such commission is suspected, proper police officer has authority to enter in investigation of same but where information relates to a non-cognizable offence, he shall not investigate it without the order of competent Magistrate.

JUDGMENT :

SHAMIM AHMED, J.

1. Heard Sri. R.P. Shukla, learned counsel for the applicant, learned AGA for the State and perused the record.

2. In this case notice was issued to opposite party no. 2 vide order dated 21.2.2013 but till date nobody has filed Vakalatnama on behalf of opposite party no. 2 nor counter affidavit has been filed on his behalf and State.

3. This application under Section 482 Cr.P.C. has been filed for quashing of the impugned cognizance and summoning order dated 11.9.2012 and criminal proceedings of Criminal Case No. 486 of 2012 (State vs. Kallu Ram and Manohar), initiated on the basis of charge-sheet No. 62 of 2012 dated 13.7.2012, arising out of Case Crime No. 112 of 2012, under Section 447 IPC and section 2/3 of Public Property Act, Police Station Machharehta, District Sitapur, pending in the Court of 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Sitapur. A further prayer has also been made to stay the further proceedings of the aforesaid case.

4. Learned counsel for the applicant submits that on 21.06.2012, respondent no. 2 lodged an F.I.R. against the applicant and one Kallu Ram, which was registered as case crime no. 112/2012, under Section 447 I.P.C. and section 2/3 Public Property Act, Police Station Machharehta District Sitapur.

5. As per the prosecution version of the F.I.R. Gata No. 747 measuring area 0.065 Hectare is entered in revenue record as Chak Road and the applicant and one Kallu Ram encroached the Chak Road by planting the trees of Eucalyptus thereon. The demarcation was done several times but they are not removing their possession from the land in question while their 17 Eucalyptus trees have been demarcated on the Chak Road.

6. Learned counsel for the applicant further submits that the entire prosecution story is false. No such incident took place and the applicant has been falsely implicated in the present case owing to annoyance of opposite party no. 2, who is Lekhpal of the area.

7. Learned counsel for the applicant further submits that before arguing the case on merits, he wants to draw the attention of the Court on the charge-sheet submitted by the Investigating Officer and submitted that the Investigating Officer had submitted the charge-sheet dated 13.07.2012 against the applicant and one Kallu Ram under Section 447 IPC and section 2/3 of Public Property Act; whereas he further submits that on the charge-sheet submitted, the learned Magistrate had taken cognizance on 11.09.2012 and the case was numbered as Criminal Case No. 486 of 2012. The cognizance was taken on the printed proforma by filling the accused names, sections of IPC and Public Property Act and date and in the said proforma, the learned Magistrate without assigning any reason has summoned the applicant for facing trial.

8. Learned counsel for the applicant further submits that by the order dated 11.09.2012 cognizance taken by the learned Magistrate on printed proforma without assigning any reason is abuse of process of law.

9. Learned counsel for the applicant further submits that after submission of charge-sheet the applicant has been summoned mechanically by order dated 11.09.2012 and the court below while summoning the applicant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the court below has not taken into consideration the material placed before the trial court along with charge-sheet and, therefore, the trial court has materially erred in summoning the applicant. The court below has summoned the applicant through a printed order, which is wholly illegal.

10. It is vehemently urged by learned counsel for the applicant that the impugned cognizance and summoning order dated 11.09.2012