Research › Search › Judgment

Allahabad High Court · body

2005 DIGILAW 288 (ALL)

YOGENDRA SINGH v. STATE of U. P.

2005-02-18

RAVINDRA SINGH

body2005
( 1 ) HEARD Sri Vishnu Gupta, learned counsel for the petitioner, learned a. G. A. and Sri A. K. Awasthi and Manish tiwari, learned counsel for the respondents nos. 2 to 8. ( 2 ) THIS writ petition has been filed against the order dated 16-8-2002, passed by learned Addl. Sessions Judge/special judge (E. C. Act), Banda in Criminal Revision No. 156 of 2002, whereby the order dated 24-4-2002, passed by learned Addl. Civil Judge (Jr. Div.)/judicial Magistrate, banda was set aside and the record was sent back to the Court of learned Addl. Civil judge (Jr. Div.) Banda and order dated 19-9-2003 passed by learned Addl. Sessions judge, Court No. 3, Banda in Criminal Revision No. 93 of 2003, whereby the revision filed by the respondents Nos. 2 to 8 was allowed and the order dated 17-4-2003 passed by learned Civil Judge (Jr. Div.) Judicial magistrate, Banda taking cognizance for the offence punishable under Sections 147, 149, 323, 504, 506, IPC and summoning the opposite parties Nos. 2 to 8 to face the trial in the abovementioned offences in Criminal case No. 81/ix of 2002, was set aside. ( 3 ) THE facts, in brief, of the present case are that the petitioner moved an application under Section 156 (3) Cr. P. C. in the court of learned I Addl. Civil Judge (Jr. Div.), banda, the same was allowed by learned i Addl. Civil Judge (Jr. Div.), Banda on 14-12-2001 and the S. O. of the Police Station marka was directed to register the case and investigate the same. In pursuance of that order, the FIR was registered at Police Station Marka on 22-12-2001 at 1-30 p. m. in case Crime No. 86a of 2001 under Sections 147, 149, 323, 504, 506, IPC against the respondents Nos. 2 to 8. After doing the investigation, the Investigating Officer submitted the final report dated 29-1-2002 mentioning therein that the accused respondents nos. 2 to 8 were falsely implicated. Against that final report, the petitioner filed a protest petition along with affidavit. Thereafter the learned Addl. Civil Judge (Jr. Div), Banda after considering the evidence collected by investigating Officer, came to the conclusion that prima facie offence punishable under sections 147, 149, 323, 504, 506, IPC is made out against the accused respondents nos. 2 to 8 and there is sufficient ground to proceed further. Thereafter the learned Addl. Civil Judge (Jr. Div), Banda after considering the evidence collected by investigating Officer, came to the conclusion that prima facie offence punishable under sections 147, 149, 323, 504, 506, IPC is made out against the accused respondents nos. 2 to 8 and there is sufficient ground to proceed further. So the final report dated 29-1 -2002 was rejected and accused respondents Nos. 2 to 8 were summoned to face the trial for the aforesaid offences on 24-4-2002. The order dated 24-4-2002 was challenged by the accused persons by way of filing Criminal Revision No. 156 of 2002, the same was allowed by learned Addl. Sessions judge/special Judge (E. C. Act) on 16-8-2002 by observing that it was proper for the magistrate to record the statements of the witnesses under Sections 200 and 202, Cr. P. C. treating the protest petition as complaint and the record of the case was again sent back to the Court of learned Magistrate to pass a fresh order in accordance with the provisions of the law. Thereafter, the learned civil Judge (Jr. Div.), Banda, in pursuance of the order dated 16-8-2002 passed by learned Addl. Sessions Judge/special judge (E. C. Act), recorded the statement of the petitioner under Section 200, Cr. P. C. and the statements of witnesses Surendra Singh and Indra Pal were recorded under Sections 202, Cr. P. C. Thereafter, the learned Civil judge (Jr. Div.), Banda came to the conclusion that on the basis of the allegations made against the accused respondents Nos. 2 to 8, prima facie offence under Sections 147, 149, 323, 504, 506, IPC is made out, so he took the cognizance and summoned the respondents Nos. 2 to 8 to face the trial for the aforesaid offences on 17-4-2003. The order dated 17-4-2003 was challenged by the accused respondents Nos. 2 to 8 by way of filing Criminal Revision No. 93 of 2003, the same was allowed by learned Addl. Sessions Judge, Court No. 3, Banda on 19-9-2003 by setting aside the order dated 17-4-2003 passed by learned Civil Judge (Jr. Div)/ judicial Magistrate, Banda, for taking cognizance and summoning the accused respondents Nos. 2 to 8. Against that order, the petitioner filed the present writ petition. Sessions Judge, Court No. 3, Banda on 19-9-2003 by setting aside the order dated 17-4-2003 passed by learned Civil Judge (Jr. Div)/ judicial Magistrate, Banda, for taking cognizance and summoning the accused respondents Nos. 2 to 8. Against that order, the petitioner filed the present writ petition. ( 4 ) IT is contended by the learned counsel for the petitioner that on the basis of the statement of the petitioner recorded under section 200, Cr. P. C. and on the basis of the statements of the witnesses recorded under section 202, Cr. P. C. prima facie offence under Sections 147, 149, 323, 504, 506, IPC is made out against the accused respondents nos. 2 to 8 and there is sufficient ground to proceed further against the respondents nos. 2 to 8. So there is no illegality in taking cognizance and summoning the accused respondents Nos. 2 to 8 to face the trial. The order dated 17-4-2003 passed by the learned civil Judge (Jr. Div.), Judicial Magistrate, banda is perfect order but the revisional court interfered with the finding of the fact and set aside the summoning order, on the ground that the learned Magistrate has treated the protest petition as complaint. It is further contended that against the police report submitted, the petitioner had filed a protest petition, thereafter the learned Judicial magistrate has taken cognizance considering the evidence collected by the Investigating officer and had summoned the respondents Nos. 2 to 8 to face the trial for the offences punishable under Sections 147, 149, 323, 504, 506, IPC on 24-4-2002. That order was set aside by learned Addl. Sessions Judge/special Judge (E. C. Act) in criminal Revision No. 156 of 2002 on 16-8-2002 by observing that it was necessary, to record the statement of the petitioner under Section 200 Cr. P. C. and the witnesses under Sections 202, Cr. P. C. for passing appropriate order and the revision was alleged by setting aside the order dated 24-4-2002. In the light of the observations made by the revisional Court vide order dated 16-8-2002, the learned Civil Judge (Jr. Div.)/judicial magistrate recorded the statement of the petitioner under Section 200, Cr. P. C. and the statements of two witnesses under Section 202, Cr. P. C. and after considering the same, he took cognizance and summoned the accused respondents Nos. In the light of the observations made by the revisional Court vide order dated 16-8-2002, the learned Civil Judge (Jr. Div.)/judicial magistrate recorded the statement of the petitioner under Section 200, Cr. P. C. and the statements of two witnesses under Section 202, Cr. P. C. and after considering the same, he took cognizance and summoned the accused respondents Nos. 2 to 8 to face the trial for the offences punishable under sections 147, 149, 323, 504, 506, IPC. So there was no illegality in the impugned order dated 17-4-2003, passed by the learned civil Judge (Jr. Div.)/judicial Magistrate, banda but the revisional Court without applying its judicial mind set aside the abovementioned order dated 17-4-2003 on 19-9-2003 on the ground that the learned magistrate has committed manifest error by treating the protest petition as complaint. ( 5 ) IT is opposed by learned A. G. A. and learned counsel for the respondents Nos. 2 to 8 by submitting that there is no illegality in the impugned orders because it had been passed after considering all the facts and circumstances of the case. In the present case, the FIR was lodged by the petitioner and after doing investigation, the Investigating officer submitted the final report, against that final report, the petitioner filed a protest petition. Learned Magistrate took the cognizance on the basis of the evidence collected by the Investigating Officer and affidavit filed by petitioner and summoned the petitioner to face the trial for the offence punishable under Sections 147, 149, 323, 504, 506, IPC by rejecting the final report on 24-4-2002. This order was suffering from illegality so the revisional Court set aside this order on 16-8-2002 in Criminal Revision No. 156 of 2002, on the ground that the petitioner had filed a protest petition along with his affidavit and the same was considered by learned Magistrate. So learned revisional Court came to the conclusion that it was proper for the Magistrate to proceed further after considering the affidavit of the petitioner and recording the statements of the petitioner and other witnesses under Sections 200 and 202 Cr. P. C. The learned Civil Judge (Jr. Div.)/judicial magistrate again summoned the accused (Res. Nos. 2 to 8) treating the protest petition as complaint on 17-4-2003 which was set aside by the learned Addl. Sessions judge, Court No. 3 on 19-9-2003, so there is no illegality. P. C. The learned Civil Judge (Jr. Div.)/judicial magistrate again summoned the accused (Res. Nos. 2 to 8) treating the protest petition as complaint on 17-4-2003 which was set aside by the learned Addl. Sessions judge, Court No. 3 on 19-9-2003, so there is no illegality. ( 6 ) FROM perusal of the order dated 16-8-2002, passed by learned Addl. Sessions judge/special Judge (E. C. Act), Banda in criminal Revision No. 156 of 2002, whereby the revision filed by accused was allowed, it appears that the learned revisional Court has not passed the specific order remitting the matter to the Court of learned Judicial magistrate to pass a fresh order. It was observed in the body of the judgment that it was proper and necessary to record the statements of the witnesses under Section 200 and 202, Cr. P. C. and the revision was allowed only on the ground that the learned magistrate had considered the affidavits filed by the petitioner also by taking cognizance and summoning the accused respondents nos. 2 to 8 on 24-4-2002 but from the perusal of the order dated 24-4-2002, passed by learned Judicial Magistrate, Banda taking cognizance and summoning the accused opposite parties Nos. 2 to 8, it is apparent that he has not considered the affidavit filed by the petitioner. He had considered only the evidence collected by the Investigating officer but he had narrated the facts in the order mentioning therein that the petitioner had filed the affidavit along with protest petition, so there is no irregularity in the order dated 24-4-2002. Therefore, the order dated 16-8-2002 passed by the learned addl. Sessions Judge/special Judge (E. C. Act), Banda in Criminal Revision No. 156 of 2002 is illegal. ( 7 ) FROM the perusal of the order dated 17-4-2003, passed by learned Civil Judge (Jr. Div.)/judicial Magistrate, Banda, it is apparent that he had recorded the statements of the petitioner and witnesses under Sections 200 and 202, Cr. P. C. in the light of the observations made by the revisional Court vide its order dated 16-8-2002 and took cognizance and summoned the respondent Nos. 2 to 8 to face the trial. So there is no illegality in the impugned order dated 17-4-2003 but the revisional Court set aside the order dated 17-4-2003 by allowing the Criminal Revision No. 93 of 2003 on 19-9-2003 filed by the accused respondent Nos. 2 to 8 to face the trial. So there is no illegality in the impugned order dated 17-4-2003 but the revisional Court set aside the order dated 17-4-2003 by allowing the Criminal Revision No. 93 of 2003 on 19-9-2003 filed by the accused respondent Nos. 2 to 8 only on the ground that the learned Magistrate had treated the protest petition as a complaint. From the perusal of the aforesaid order dated 19-9-2003, it appears that the learned Addl. Sessions Judge, court No. 3, Banda has not applied its judicial mind and passed an illegal order on the following grounds :- (i) The learned Civil Judge (Jr. Div.)/judicial magistrate. Banda had recorded the statements of the petitioner and other witnesses under Sections 200 and 202. Cr. P. C. in pursuance of the order passed by the revisional Court, thereafter he took the cognizance and summoned the accused respondent Nos. 2 to 8 to face the trial: (ii) Whenever a final report is filed in the court by the police, the notice is sent to the first informant for filing the protest petition, against that final report if the protest petition is filed by the first informant. Thereafter, if the learned Magistrate comes to the conclusion that on the basis of the evidence collected by the Investigating Officer, prima facie any offence is made out against the accused and there is sufficient ground to proceed further against the accused. He is empowered to take cognizance and summon the accused to face the trial for a particular offence only on the basis of the police report and learned Magistrate is also empowered to proceed further adopting the procedure of a complaint case by treating the protest petition as complaint and after recording the statements under Sections 200 and 202. Cr. P. C. . if he is satisfied that on the basis of the allegations made against the accused prima facie any offence is made out against the accused and there is sufficient ground to proceed further, he is legally empowered to take cognizance and summon the accused to face trial. In the present case the learned Civil Judge (Jr. Div.)/judicial Magistrate. Banda adopted a correct procedure by treating the protest petition as complaint, it was not necessary for the petitioner to file a separate complaint. ( 8 ) THE order dated 16-8-2002, passed by learned Addl. In the present case the learned Civil Judge (Jr. Div.)/judicial Magistrate. Banda adopted a correct procedure by treating the protest petition as complaint, it was not necessary for the petitioner to file a separate complaint. ( 8 ) THE order dated 16-8-2002, passed by learned Addl. Sessions Judge/special judge (E. C. Act), Banda in Criminal revision No. 156 of 2002 is also under challenge in the present writ petition. It will not be proper to pass any order against the order dated 16-8-2002 because in pursuance of the observations made in the abovementioned order, the learned Civil Judge (Jr. Div.), Banda had recorded the statements of the petitioner and other witnesses under sections 200 and 202, Cr. P. C. and thereafter the cognizance was taken against respondent Nos. 2 to 8 and they were summoned to face the trial for the abovementioned offence on 17-4-2003. The respondent Nos. 2 to 8 had challenged the order dated 17-4-2003 by filing Criminal Revision No. 93 of 2003 which was allowed on 19-9-2003 by learned Addl. Sessions Judge, Court No. 3, banda. The petitioner had not challenged the order dated 16-8-2002 immediately thereafter and subsequently some other order as mentioned above had been passed by learned Civil Judge (Jr. Div.)/judicial magistrate, Banda and learned Addl. Sessions Judge, Court No. 3, Banda which is under challenge. ( 9 ) IN view of the discussions made above, the impugned order dated 19-9-2003, passed by learned Addl. Sessions Judge, court No. 3, Banda in Criminal Revision No. 93 of 2003 is illegal and hereby set aside and the order dated 17-4-2003, passed by learned Civil Judge (Jr. Div.)/judicial Magistrate, Banda in Criminal Complaint Case no. 81/ixof 2002, Yogenclra Singh v. Kamal singh, taking cognizance and summoning the accused respondent Nos. 2 to 8 to face the trial for the offences punishable under sections 147. 149, 323, 504, 506, IPC is affirmed and learned Civil Judge (Jr. Div.)/ judicial Magistrate, Banda is directed to proceed further in the aforesaid case, in accordance with the provisions of the law. Accordingly, this writ petition is allowed. Petition allowed. .