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2003 DIGILAW 415 (ALL)

THAN SINGH v. KISHORE KUMAR

2003-02-25

K.N.SINHA

body2003
K. N. SINHA, J. Heard the learned Counsel for the petitioners, the learned AGA and perused the impugned order. 2. The present writ petition has been moved under Article 226 of the Constitution of India for issue of a writ in the nature of certiorary quashing the order dated 11-12-2001 passed by the I Addl. Civil Judge (Junior Division)/judicial Magistrate, Badaun and the order dated 29-8-2002 passed by the Addl. Sessions Judge Court No. 7, Badaun in Criminal Revision No. 38 of 2002, Annexures 9 and 10 to the writ petition. 3. The brief facts giving rise to this petition are that the respondent No. 1 filed an application under Section 156 (3) Cr. P. C. on 24-4-2000 wherein an order for investigation was passed. The IO submitted FR before the Magistrate. The II Addl. CJM Badaun issued notice to the informant, respondent No. 1, who filed an application praying to record his statement. The statement of respondent No. 1 was recorded under Section 200 Cr. P. C. and that of three witnesses Tejpal, Shivom and Shyam Singh were recorded under Section 202 Cr. P. C. (Annexures 5, 6, 7 and 8 respectively to the writ petition ). The learned Magistrate took cognizance and passed an order summoning the petitioners. The petitioners filed a revision before the Sessions Judge, Badaun, which was dismissed. It is alleged that the impugned orders are bad in the eyes of law as the proceedings in question against the petitioners have been instituted as a counter-blast to case Crime No. 87 2000 under Section 323/504 IPC and the three eye witnesses are the main accused in that case. 4. The respondent No. 1 filed a counter-affidavit on the ground that the statement of the respondent and witnesses were recorded and the Court after examining the evidence passed the order. 5. Rejoinder affidavit was also filed on behalf of the petitioners. 6. It was submitted by the learned Counsel for the petitioners that the police has submitted the FR observing that as a case against the respondent was already proceeding, hence, the FR was submitted. This was the version of the police but the Magistrate is not bound to accept the version of the police. 7. I have perused the summoning order and that of the revisional Court. This was the version of the police but the Magistrate is not bound to accept the version of the police. 7. I have perused the summoning order and that of the revisional Court. If some incident takes place and beating is given from both sides and both sides lodged FIR it cannot be said that the FIR by the other party is the result of the FIR by one party. If this plea is accepted, then every aggrieved person lodging the report after one party has lodged shall be debarred from taking action against the culprit. The order of the Magistrate shows that there were three eye-witnesses besides the complainant and a report to the SSP. It is settled principle that the Magistrate on receipt of a report under Section 173 (2) Cr. P. C. may accept the report or reject the same and take cognizance of the offence under Section 190 (1) (b) Cr. P. C. or he may take cognizance of offence under Section 190 (1) (a) Cr. P. C. on the basis of the original complaint and proceed to examine the complainant and his witnesses. 8. The apex Court in Mahesh Chandra v. Janardan Reddy and others, reported in 2003 (2) JIC 15 (SC), has held that merely because the Magistrate has accepted the F. R. the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition. 9. So far as the question of evidence is concerned, the Court has to see whether there exists sufficient ground to proceed or not. By scrutinising the impugned order of the Magistrate I find that there exists sufficient ground to proceed against the accused and the order of the learned Magistrate and that of the revisional Court are perfectly justified in view of the evidence available on record. 10. The writ petition is devoid of any merit and therefore, it is hereby dismissed. Petition dismissed. .