The main legal point established in the judgment is the interpretation and application of Section 482 of the Criminal Procedure Code (Cr.P.C.) in the context of quashing proceedings of a criminal case and the sufficiency of evidence under Sections 147, 302, 201 IPC for summoning the accused.

JUDGMENT :

(Application No.14 of 2022)

1. The application seeks recall of the order dated 12.04.2022.

2. Heard learned counsel for the applicants-petitioners.

3. Allowed.

4. Order dated 12.04.2022 is hereby recalled.

5. The petition is restored to its original number.

(Order on Memo)

6. Present petition under Section 482 Cr.P.C. has been filed seeking quashing of the proceedings of Criminal Case No.3682 of 2010: Smt. Madhuri vs Anoop Kumar & Ors, arising out of Case Crime No. 879 of 2008 under Sections 147, 302, 201 IPC, Police Station Mishrikh, District Sitapur as well as summoning order dated 23.12.2015 whereby the petitioners have been summoned to face trial under Sections 147, 302, 201 IPC.

Further challenge has been made to the order passed by the learned Additional Sessions Judge, Court No.11, Sitapur in Criminal Revision No.50 of 2016 dismissing the revision of the petitioners instituted against the summoning order dated 23.12.2015.

7. The complainant/respondent No.2 filed an application on 14.12.2007 under Section 156(3) Cr.P.C. alleging that her son was killed on 12.11.2007 at around 9 A.M. by the accused-petitioners and his dead body was hanged from a tree. On the basis of order passed by learned Magistrate the FIR at Case Crime No.879 of 2008 came to be registered on 11.07.2008 under Sections 147, 302, 201 IPC against the accused-petitioners.

8. The investigating agency, however, filed closure report in favour of the petitioners on 24.07.2008. Against the closure report, the complainant filed a protest petition, and the learned Magistrate considering the evidence and material, took cognizance under Section 190 Cr.P.C. and summoned the accused-petitioners for offences under Sections 147, 302, 201 IPC vide order dated 29.07.2010.

9. The petitioners thereafter filed a petition under Section 482 Cr.P.C. being Criminal Miscellaneous Case No.48 of 2011.

10. This Court on 31.01.2011 passed the following order in the said petition:-

"Supplementary affidavit filed by the petitioners is taken on record. The petitioners have challenged the order dated 29th of July, 2010, passed by the learned Chief Judicial Magistrate, Sitapur on the ground that the learned Magistrate has taken cognizance of offence on the protest application under Section 190(1)(b)Cr.P.C., which provides that the Magistrate may take cognizance of any offence in exercise of power provided under the aforesaid section, but the Magistrate may take cognizance of offence only upon the police report of such facts. He further submits that the complaint case can never be treated as a police case, whereas the learned Magistrate has directed to proceed as State Case. Upon perusal of the order impugned the submission of learned counsel for the petitioners cannot be disputed. I am of the view that the learned Magistrate on the basis of complaint can may take cognizance of offence only under Section 190 (1)(a) Cr.P.C. and that is not the State case in any manner, therefore, I hereby modify the order impugned to the extent that the cognizance taken by the learned Magistrate shall be considered as cognizance taken under Section 190(1)(a) Cr.P.C. and the learned Magistrate shall proceed with the case accordingly. In the aforesaid terms the petition is disposed of finally."

11. From perusal of the aforesaid order, it is evident that learned Single Judge was of the opinion that this petition was not a state case and, therefore, the order dated 29.07.2010 passed by the Magistrate was modified to the extent that cognizance taken by the learned Magistrate should be considered as cognizance taken under Section 190(1)(a) Cr.P.C. and the Magistrate should proceed with the case accordingly.

12. Thus, this Court directed the learned Magistrate to treat the protest petition as a complaint case. After passing of the aforesaid order by the this Court, the case was registered as a complaint case vide Case No.3692 of 2010.

13. Statement of the complainant was recorded under Section 200 Cr.P.C. on 09.06.201