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2007 DIGILAW 2430 (ALL)

SURYABHAN SINGH v. STATE OF UTTAR PRADESH

2007-09-25

SHIV SHANKER

body2007
JUDGMENT Hon’ble Shiv Shanker, J.—This petition has been preferred with the prayer to quash the orders dated 6.7.2006 and 25.7.2007 passed by the Additional Chief Judicial Magistrate, Court No. 2, Varanasi and Additional Sessions Judge, Court No. 1, Varanasi respectively. It is further prayed that the concerned Magistrate be directed to conduct the proceedings according to the provisions of Sections 190 and 204, Cr.P.C. for summoning the accused. 2. Heard learned Counsel for the petitioner and learned A.G.A. as well as perused the material available on record. 3. Learned Counsel for the petitioner submitted that the application moved under Section 156(3), Cr.P.C. on behalf of the petitioner was allowed by the concerned Magistrate by passing the order of registering and investigating the case. The case was registered and investigated and the charge-sheet was submitted to the S.S.P. concerned but the S.S.P. concerned has directed for re-investigation upon the said charge-sheet. The same was not filed before the concerned Court for taking cognizance. 4. After re-investigation of the matter a final report was submitted and the same was filed in the concerned Court alongwith the previous charge-sheet. Thereafter the petitioner appeared and filed a protest petition against the final report which was rejected and the final report was accepted vide order dated 7.8.2003 passed by the concerned Magistrate. This order was challenged by way of filing Criminal Revision No. 266 of 2003. The said revision was allowed and the matter was remanded for deciding afresh. Thereafter objection was filed on behalf of the alleged accused whose names were mentioned in the application under Section 156(3), Cr.P.C. 5. The concerned Magistrate has considered the objection filed on behalf of the said accused and again the protest petition was rejected and final report was accepted. Thereafter the petitioner has again to filed criminal revision. The same was also dismissed by considering the defence case of the accused while the alleged accused had no locus standi to file the objection and to hear in the Court. It is further contended that the protest petition was to be decided merely on the basis of the case of prosecution as the case taken in the protest petition but the case of accused cannot be considered either by the concerned Magistrate regarding the final report as well as by the revisional Court. It is further contended that the protest petition was to be decided merely on the basis of the case of prosecution as the case taken in the protest petition but the case of accused cannot be considered either by the concerned Magistrate regarding the final report as well as by the revisional Court. Therefore, both the Courts below have committed illegality in considering the case of the alleged accused person in rejecting the protest petition and accepting the final report. 6. On the other hand, learned A.G.A. has urged that both the Courts below have not committed any illegality in passing the impugned orders and the same had been passed according to law. 7. Learned Counsel appeared on behalf of the alleged accused person whose names have already been mentioned in the application under Section 156(3), Cr.P.C. at the time of hearing of the objection upon which Sri D.S. Misra has objected that he has no locus standi. 8. The contention of learned Counsel for the petitioner has force regarding no locus standi of the learned Counsel for the accused to make arguments as they had not been summoned for trial and no process has been issued against them. The same view has been reiterated in the following decisions of the Apex Court as well as of this Court : 1. Gangadhar Janardan Mhatre v. State of Maharashtra and others, 2005 SCC (Cri) 404 2. Ranjeet Singh and others v. State of U.P. and another, 2000(1) A.Cr.R. 1 (F.B.). 3. Pratap and others v. State of U.P. and others, 1995(2) JIC 2040 (All). 4. Shesh Nath Tiwari v. State of U.P. and another, 1998 (2) A.Cr.R. 1506. 9. It has been observed in the decision of Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096, as under : “Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require : (I) he may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall given an opportunity of hearing to the complainant. But before so doing, he shall given an opportunity of hearing to the complainant. (II) he may take cognizance under Section 190(1)(b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complainant should be dismissed or process should be issued.” 10. Therefore, four options are available before the concerned Magistrate where the final report has been submitted by the Investigating Officer. In the present case, firstly, a charge-sheet was submitted before the concerned S.S.P. but the same was not sent to the concerned Court for taking cognizance and the order of reinvestigation was passed. It could not be passed by him but the same could have been passed for further investigation on the charge-sheet under Section 173(8), Cr.P.C. However, the matter cannot be reinvestigated on the basis of the order passed by the concerned Magistrate upon which the final report was submitted in the concerned Court by the Investigating Officer alongwith the previous charge-sheet. In such circumstances, the petitioner, who was author of the FIR, was summoned to file a protest petition and he filed the same before the concerned Magistrate against the final report. This final report was to be decided merely on the basis of evidence available on record in the case diary. If the prima facie case was made out against the alleged accused on the basis of the statements of the prosecution witnesses, and in such circumstances the protest petition could be allowed and the final report be rejected. Another option was also available when no prima facie case was made out in the case diary and in such circumstances, the protest petition should have been treated as a complaint. Another option was also available when no prima facie case was made out in the case diary and in such circumstances, the protest petition should have been treated as a complaint. Therefore, the statements of complainant and the witnesses should have been recorded under Sections 200 and 202, Cr.P.C. and then the appropriate order should have been passed by the concerned Magistrate after considering the statements of complainant and the witnesses. Another option was also available before the concerned Magistrate where there was no evidence on record in the case diary and it was necessary that the matter should have been investigated again. In such circumstances the order of further investigation should have been passed under Section 173(8), Cr.P.C. The fourth option was also available when there was no evidence to make out the prima facie case the final report can be accepted and the protest petition can be rejected when the complainant has not produced any evidence in support of the protest petition. 11. At this stage, there was no occasion to file objection against the protest petition on behalf of the accused and considering the objection in deciding the matter of final report. In the present case, the trial Court as well as the revisional Court has committed illegality, incorrectness and impropriety in considering the objection of accused and same have not been passed according to law. In such circumstances the impugned orders passed by both the Courts below are liable to be quashed. 12. In this view of the matter, the petition is allowed and impugned orders dated 6.7.2006 and 25.7.2007 passed by the Additional Chief Judicial Magistrate, Court No. 2, Varanasi and Additional Sessions Judge, Court No. 1, Varanasi respectively are hereby quashed. The concerned Magistrate is directed to pass fresh order upon the final report and protest petition according to law and directions given above in the body of this order. ————