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2001 DIGILAW 1139 (ALL)

RAM AGYA v. STATE OF UTTAR PRADESH

2001-12-06

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS revision has been directed against the order dated 27/9/2001 passed by Additional Sessions Judge. Deoria in Criminal Revision No. 92 of 2001 allowing the revision and setting aside the order dated 11/7/2001 passed by Chief Judicial Magistrate. Deoria in Misc. Application No. 793 of 2001 rejecting the application Rajesh Dollar opposite party No. 2 under Section 156 (3) Cr. P. C. as well as the order dated 4/10/2001 passed by Chief Judicial Magistrate, Deoria allowing the application of opposite party No. 2 in pursuance of revisional order. ( 2 ) IT appears that the opposite party No. 2 Rajesh Dollar moved an application before Chief Judicial Magistrate. Deoria under Section 156 (3) Cr. P. C. for directing the local police to register a case against the applicants under Sections 323, 325, 452, 504, 506 I. P. C. and investigation and report with the allegations that he had enmity with applicant Ram Agya. On 28/5/2001 marriage party of son of Ram Agya had to proceed and opposite party No. 2 was serving food at his house. Ram Agya was taking food and he started abusing him. However, the persons present there pacified him. Thereafter at about 2 P. M. the applicants formed an unlawful assembly raided house of opposite party No. 2, started abusing him and by entering into his house caused injuries with lathi, danda, hands and fists to him. When Suresh came to save him the applicants also caused injuries to him. The occurrence was witnessed by Gulab Chand, Ram Kishan, Ram Newaj and others. The opposite Party No. 2 got himself medically examined at Gauri Bazar and went to lodge a report at the police station, but the Head Constable did not lodge his report under the pressure of applicants. Thereafter, he sent an application to Superintendent of Police, but still his report was not written. Therefore, he moved the application before the Court of Chiefjudicial Magistrate. ( 3 ) THE learned Chief Judicial Magistrate on considering the above report rejected the same on 11/ 7/2001 on the ground that no prima facie cognizable offence has been disclosed. ( 4 ) AGGRIEVED with the above order, the opposite party No. 2 filed Criminal Revision No. 92 of 2001 before the Sessions Judge. Deoria. ( 3 ) THE learned Chief Judicial Magistrate on considering the above report rejected the same on 11/ 7/2001 on the ground that no prima facie cognizable offence has been disclosed. ( 4 ) AGGRIEVED with the above order, the opposite party No. 2 filed Criminal Revision No. 92 of 2001 before the Sessions Judge. Deoria. The revision was decided by Additional Sessions Judge, who found that the learned Magistrate had based his findings on the report of the police, which was not correct. Therefore, he allowed the revision and directed the Chief Judicial Magistrate to decide the application of the applicant afresh. ( 5 ) ON remand of the case the learned Chief Judicial Magistrate, vide order dated 9/10/2001 allowed the application and directed the police of P. S. Gauri Bazar to register a case against the applicants and to investigate it. The applicant had challenged the above order in this revision. Heard the learned counsel for the applicant and the learned A. G. A. and perused the record. ( 6 ) THE contention of the learned counsel for the applicants was that the applicant Ram Agya had lodged report against opposite party No. 2 and others with the allegation that on 28/5/2001 at about 2 P. M. Vijendar, Rajesh (opposite party No. 2 ). Sugriv, Deen Dayal and maternal uncle of Babu formed unlawful assembly and entered into his house and caused injuries to him and his mother Ram Razia Devi his brother Lal Bahadur aunt Hemwati Devi and Lal Kamal with lathi, danda, brick bats, farsa and iron rod. On account of intervention of the witnesses they were saved. The skull bone of his mother and brother were broken and he had also sustained fracture in his hand. That on the basis of above report, a case of crime No. 198 was registered at P. S. Gauri Bazar District Deoria. That the opposite party No. 2 moved the application for lodging report of the same incident and therefore, subsequent report cannot be registered. In support of his above contention he placed reliance on Apex Court decision in T. T. Antony v. State of Kerala and others. ( 7 ) IT was held in the said case that an information given under Subsection (1) of Section 154 Cr. P. C. is commonly known as First Information Report (FIR) though this term is not used in the Code. ( 7 ) IT was held in the said case that an information given under Subsection (1) of Section 154 Cr. P. C. is commonly known as First Information Report (FIR) though this term is not used in the Code. The report sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr. P. C. , as the case may be and forwarding of a police report under section 173 of Cr. P. C. All other informations made orally or in writing after the commencement of the investigation into the congnizable offences disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other congnizable offences as may come to his notice during the investigation will be statements falling under Section 162 of Cr. P. C. No such information statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P. C. ( 8 ) HAVING gone through copies of both the reports (lodged by the applicant Ram Agya and by opposite party No. 2), I find no force in the above contention. The application of the opposite party No. 2 under Section 156 (3) Cr. P. C. through which he requested the Magistrate to direct the Station Officer to register a case regarding the allegation contained in the application and investigation was not in respect of same occurrence regarding which the applicant Ram Agya had lodged report at the police station. The incident mentioned by opposite party No. 2 in his above application was a counter version as according to him the incident took place inside his house. Therefore, it cannot be said that opposite party No. 2 prayed the Magistrate through the application under Section 156 (3) Cr. P. C. to lodge report regarding the same incident regarding which Ram Agya had lodged report at the police station. It was a report of a cross version. Therefore, above contention cannot be accepted and the case law relied by the learned counsel for the applicant is not applicable to the facts of the present case. P. C. to lodge report regarding the same incident regarding which Ram Agya had lodged report at the police station. It was a report of a cross version. Therefore, above contention cannot be accepted and the case law relied by the learned counsel for the applicant is not applicable to the facts of the present case. ( 9 ) THE next contention of the learned counsel for the applicants was that learned Chief Judicial Magistrate had once rejected the application, but the Revisional Court wrongly allowed it on the ground that the Magistrate should not have based his opinion on the report of the police and when the police reported that occurrence did not take place in the manner alleged by opposite party No. 2, the Magistrate had no power to allow the application. He also relied on some single Judges decision of this Court. But now the controversy has been settled by Full Bench decision of this Court in Ram Babu Gupta v. State of U. P. , that if the application under Section 156 (3) Cr. P. C. discloses cognizable offence. the Magistrate had two options either to get it investigated through police prior to taking cognizance or may enquire himself by adopting the procedure contained in Section 200 and 202 Cr. P. C. The contents of F. I. R. discloses a cognizable case and therefore, the Revisional Court rightly allowed the revision and Magistrate in compliance of the direction of revisional order allowed the application. It may be mentioned that at this stage, the Magistrate was not required to record a finding regarding correctness of the facts disclosed in the application, but he had to see whether the contents disclosed a prima facie case or not. In this way, there is no force in the revision and it is summarily rejected. Revision dismissed. .