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2006 DIGILAW 660 (UTT)

JAMIL AHMAD v. STATE OF UTTARANCHAL

2006-11-21

RAJESH TANDON

body2006
JUDGMENT Rajesh Tandon, J. — Heard Sri Rajendra Prasad, Counsel for the applicant and A.G.A. for the State. 2. By the present application filed under section 482 of the Code of Criminal Procedure, applicant has prayed for quashing the order dated 26.4.2006 passed by the opposite party No. 2 - District & Sessions Judge, Haridwar in Criminal Revision No. 48 of 2006 Jamil Ahmad v. State & impugned order dated 16.1.2006 passed by the opposite party No. 3 - Judicial Magistrate, Roorkee, District Haridwar in Misc. Case No. 233 of 2005 Jamil Ahmad v. Julfikar and others, under sections 395, 397 & 120-B of the I.P.C. Police Station Kotwali, Roorkee, District Haridwar. 3. Briefly stated, on 7th January, 2006 at about 12:00 A.M., the brother of the applicant Mazbul Hassan informed at Roorkee that about 10:00 to 10:30 A.M. Julfikar, S/o Hasim, Sakil S/o Hasim, Anjar & Lallu S/o Julfikar, Amir Alam & Samshad S/o Sakil Parvage & Awage S/o Inam, Ikbal & Muneer S/o Yusuf, Toqir S/o Faruk entered in the house of the applicant having weapons after breaking the locks and looted all the items including golden and silver jewellery valued about Rs. 2,00,000 (Two Lacs) from the house of the applicant and Parvage & Amir Alam also opened fire on the brother and uncle of the applicant and threatened to kill them, if they would come on the spot. 4. On receiving the information from his brother, the applicant gave a written complaint on the same day i.e. on 7.1.2004 at Police Station - Kotwali Roorkee, District Haridwar for lodging his F.I.R. against the accused persons, which was received by the Police, but the police did not lodge the FIR of the applicant under section 54 of the Code of Criminal Procedure. The petitioner approached the high authorities and ultimately the applicant moved an application under section 156(3) of the Code of Criminal Procedure and by order dated 30th July, 2005 passed by the Magistrate, the FIR on the complaint of the applicant was lodged against the accused persons at Police Station - Kotwali Roorkee, District Haridwar as Case Crime No. 226 of 2005 under sections 395, 397 & 120-B of the I.P.C. Police Station-Kotwali Roorkee, District Haridwar on 1.8.2005 at about 10:20 A.M. 5. On the same day i.e. on 1.8.2005, the investigation of Case Crime No. 226 of 2005 under sections 395, 397 and 120-B of I.P.C. was conducted by Sub Inspector - Sri O.P. Arya. 6. The grievance of the petitioner is that Sri O.P. Arya in collusion with the accused persons submitted a final report on the same day i.e. 1.8.2005. The petitioner has filed a protest petition against the final report and has also filed an application for further investigation to the following effect : ß4- ;g fd izkFkhZ us ofj’B iqfyl v/kh{kd gfj}kj ds ;gk¡ ,d izkFkZuk&i= e; “kiFk&i= xokgksa ds fnukad 20-8-2005 dks o 3-8-2005 o 9-12-2005 izsf’kr fd;k Fkk ml “kiFk&i=ksa dks Hkh vkbZñvksñ us dsl Mk;jh esa bUækt ugha fd;k gS vkSj vkbZñvksñ us vfHk;qDrx.k ls lkt djds QthZ rjhds ls “kiFk&i= dsl Mk;jh esa nkf[ky fd;s gSa vkbZñvksñ us ?kVuk LFky dk Hkh fujh{k.k ugha fd;k gSA 5- ;g fd vkbZñvksñ us vfHk;qDrx.k ls feydj bl dsl esa vfUre fjiksVZ nkf[ky fd;s gSaA 6- ;g fd tks “kiFk&i= ,lñ,lñihñ egksn; gfj}kj dks izsf’kr fd;s esa mudh lR;kfir QksVks dkih izkFkhZ vkifÙkdrkZ izkFkZuk&i= ds lkFk layXu dj jgk gSA 7- ;g fd iqfyl }kjk nkf[ky vfUre fjiksVZ ij lwjr o gj fygkt ls fujLr gksus ;ksX; gSA vr% Jheku th ls izkFkZuk gS fd iqfyl }kjk nkf[ky vfUre fjiksVZ fujLr djds vfHk;qDrx.k ds fo#) iqu% tk¡p djus ds vkns”k ikfjr djus dh Ñik djsaA Ñik gksxhAÞ 7. The application was rejected on 16.1.2006. Against the aforesaid rejection order, the applicant went in revision. The revision was also dismissed on 26.4.2006. 8. Counsel for the applicant has submitted that both the Courts below have not considered the request of the petitioner for further investigation on complaint made under section 173(8) of the Code of Criminal Procedure and the Magistrate concerned has passed the order on merits instead of passing appropriate order on the application filed by the applicant. 8. Counsel for the applicant has submitted that both the Courts below have not considered the request of the petitioner for further investigation on complaint made under section 173(8) of the Code of Criminal Procedure and the Magistrate concerned has passed the order on merits instead of passing appropriate order on the application filed by the applicant. Section 173(8) of the Code of Criminal Procedure is quoted below : “(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” 9. In view of the aforesaid facts, the matter is remitted to the opposite party No. 2, who shall pass fresh/appropriate order on the application filed by the applicant under section 173(8) of the Code of Criminal Procedure in accordance with law after considering the same on merits. 10. Orders dated 16.1.2006 and 26.4.2006 shall be subject to the fresh orders on the application filed by the applicant under section 173(8) of the Code of Criminal Procedure. 11. Petition is allowed. No order as to costs.