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Allahabad High Court · body

2007 DIGILAW 1231 (ALL)

VIJAI PRATAP v. STATE OF UTTAR PRADESH

2007-04-26

RAVINDRA SINGH

body2007
JUDGMENT Honble Ravindra Singh, J.—Heard Sri Satya Prakash Srivastava and Sri Rajesh Pratap Singh the learned Counsel for the applicants and learned A.G.A. 2. This application has been filed with a prayer to quash the order dated 2.4.2007, passed by the Chief Judicial Magistrate, Jaunpur in Case No. 140 of 2007, whereby the learned Magistrate has rejected the final report and accepted the protest petition, has taken the cognizance and summoned the applicants to face the trial for the offences punishable under Sections 323, 325, 504, 506 and 452 I.P.C. and Section 3(1) (x) of S.C./S.T. (PA) Act. 3. It is contended by the learned Counsel for the applicants that in the present case learned Magistrate has taken cognizance only on the basis of material collected by the I.O., i.e., police report, whereas it has been specifically alleged by the first informant in the protest petition that I.O. has not recorded the statement of the witnesses even the spot inspection was not done by the I.O. and the I.O. has obtained the affidavits of the villagers at the police station with an object to submit the final report and then submitted the final report in the Court of learned C.J.M., Jaunpur. 4. It is further contended that the learned Magistrate concerned has not recorded any finding that on the basis of the material collected by the I.O. prima facie offences under Sections 323, 325, 504, 506, I.P.C. and Section 3(1) (x) SC/ST (PA) Act is made out, the impugned order has been passed in a routine manner without perusing the case diary. 5. It is further contended that it is surprising that the final report has been rejected and on the basis of the same final report, the learned Magistrate concerned has taken the cognizance and summoned the applicants which is self contradictory, therefore, the impugned order is illegal and is liable to be set aside. 6. In reply of the above contentions the learned A.G.A. submitted that the impugned order is well reasoned which shows that it has been passed after perusing the case diary and applying the judicial mind and there is no contradiction in rejecting the final report and summoning the applicants to face the trial, there is no illegality in the impugned order, the present application is liable to be dismissed. 7. 7. Considering the facts and circumstances of the case, submissions made by the learned Counsel for the applicants and learned A.G.A. and from the perusal of the record and impugned order dated 2.4.2007, it appears that the learned Chief Judicial Magistrate, Jaunpur has taken the cognizance and summoned the applicants on the basis of the police report whereas the specific allegation against the I.O. has been made by the first informant that the statements of the witnesses have not been recorded by the I.O., in such circumstance after perusing the case diary it should be mentioned in the impugned order whether the statements of witnesses are recorded or not, if the statements are not recorded, the further investigation is essentially required or if the statements of witnesses are recorded, the learned Magistrate is under obligation to record the opinion that on the basis of the material collected by I.O. prima facie a particular offence is made out or no offence is made out, but in the present case no such opinion has been expressed by the learned Chief Judicial Magistrate, Jaunpur in the impugned order, therefore, the impugned order is illegal. 8. 8. The contention made by the learned Counsel for the applicants that in case the final report is rejected, a cognizance cannot be taken after considering the same final report because it is self contradictory, it requires a consideration because it is of academic in nature, to deal with this issue, it is necessary to discuss the difference between the police report, the final report and the charge-sheet, the police report is forwarded after completing the investigation to a Magistrate empowered to take cognizance of the offence under Section 173(2), Cr.P.C. The Code of Criminal Procedure, 1973 does not contain the terms charge-sheet and final report, it contains the term police report, when the case comes under Section 169 Cr.P.C. in some states including Uttar Pradesh it is called ‘Final report’ or ‘deferred charge-sheet’ etc., when the case comes under Section 170, Cr.P.C. it is called ‘Charge-sheet’ or ‘Challan’ but the report forwarded under Section 173(2) includes both the cases covered under Sections 169 and 170, Cr.P.C. The conclusion part of the police report i.e., the opinion of the investigating officer, on the materials collected, there is or not, to place the accused for trial or not before a Magistrate concerned, it is the last of the several stages involved in the investigation by the police, if the collected material is not sufficient or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate concerned for trial is called Final Report and if it is sufficient for trial is called ‘Charge-sheet’. The police report contains the considered opinion of the investigating police officer, it is forwarded to a Magistrate concerned for the approval, which may or may not be approved by the Magistrate concerned because the learned Magistrate reviews the facts independently to see whether the acts alleged constitute an offence under the law or not. 9. The police report contains the considered opinion of the investigating police officer, it is forwarded to a Magistrate concerned for the approval, which may or may not be approved by the Magistrate concerned because the learned Magistrate reviews the facts independently to see whether the acts alleged constitute an offence under the law or not. 9. In the present case, the learned Magistrate rejected the Final Report, i.e., the conclusion drawn by the I.O. for not putting the accused to trial, it does not mean that the police report has been rejected, the opinion of the I.O. or conclusion drawn by I.O. on the collected materials can be rejected by the learned Magistrate concerned and on the same material cognizance can be taken and accused can be summoned to face the trial for an offence disclosed by the materials collected, therefore, the contention that after rejecting the final report, the accused cannot be summoned to face the trial is having no substance. 10. In view of the above discussion, the impugned order dated 2.4.2007 is illegal because learned Chief Judicial Magistrate, Jaunpur has not recorded his satisfaction that after considering the material collected by the I.O., a prima facie offence under Sections 323, 325, 504, 506, I.P.C. and Section 3(1) (x) SC/ST (PA) Act is made out and no opinion has been expressed about the allegation made by the first informant regarding non-interrogation of the witnesses, therefore, the impugned order is hereby set aside. The impugned order has been set aside on the technical ground, therefore, the learned Chief Judicial Magistrate, Jaunpur is directed to pass a fresh order on the police report, in accordance with law. Accordingly, this application is finally disposed of. ————