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2008 DIGILAW 1623 (ALL)

SUNIL KUMAR AGARWAL v. STATE OF U. P.

2008-08-12

S.C.AGARWAL

body2008
JUDGMENT S.C. AGARWAL J. 1. Heard Sri Manish Tiwary, learned Counsel for the revisionist, learned A.G.A for the State and perused the material on record. The instant revision is directed against the order dated 7.7:2010 passed by A.C.J.M., Court No. 1, Varanasi in final report No. 15 of 2010 under sections 323, 308, 504 and 506, IPC, Police Station Rohania, District Varanasi whereby the final report submitted by the police was accepted and protest petition filed by revisionist complainant was rejected. 2. The facts are that the revisionist complainant Sunil Kumar Agarwal and the accused Ashok Kumar and Anil Kumar are real brothers, They live in the same house. On 22.1.2003, a FIR was lodged by the complainant at Police Station Rohania, District Varanasi stating therein that there was a dispute with the accused persons due to partition of the property in respect of which, FIR was earlier lodged on 19.12.2009 against the accused persons at P.S. Mughal Sarai, which was registered at crime No. 544 of 2009 under sections 341, 352, 504 and 506, IPC. On 31.12.2009 at about 7:00 p.m., the complainant and few of his friends and relatives had made a program to celebrate the New Year Eve at 'Thikana Dhaba', Shahababad, P.S. Rohania. The complainant started for the appointed place by his Scorpio car with his driver Devendra Kumar Dubey. At about 6:00 p.m., a little ahead of Mazar in village Bairwan, accused persons accompanied by two other companions overtook them in a Swift Dzire Car and stopped them. The complainant was pulled down from the vehicle. Anil Kumar armed with hockey and Ashok Kumar armed with knife started beating the complainant. The other two unknown persons threatened his driver Devendra Kumar Dubey. Head injuries were caused to the complainant. The complainant went to Pandit Deen Dayal Upadhyay Government Hospital and got himself medically examined. On 1.1.2010, a written report was submitted at P.S. Rohania, but report was not lodged. Ort the same day, a dasti report was handed over at the Office of D.L. Varanasi and again on 2.1.2010, it was sent by registered post. There were serious injuries on the f head. C.T. Scan was performed and fracture was found in the head. 3. After investigation, final report was submitted by the police. The complainant filed protest petition against the final report. Learned Magistrate accepted the final report and rejected the protest petition. There were serious injuries on the f head. C.T. Scan was performed and fracture was found in the head. 3. After investigation, final report was submitted by the police. The complainant filed protest petition against the final report. Learned Magistrate accepted the final report and rejected the protest petition. Hence, this revision. Learned Counsel for the revisionist submitted that the Magistrate rejected the protest petition on irrelevant grounds and Magistrate was not entitled to analyze the evidence in a manner as if he was deciding a criminal trial. Magistrate had only to find out whether there were sufficient grounds for proceeding with the case. It was contended that there was sufficient material in the case diary on the basis of which the Magistrate ought to have summoned the accused to face trial. It was further contended that the complainant had fully corroborated the FIR version in his statement under section 161 Cr.P.C. His driver also corroborated the statement of 'the complainant. The medical evidence also supported the version of the complainant even though learned Magistrate found fault with the evidence and accepted the final report. It was contended that if the Magistrate was not satisfied with the material available in the case diary, it was open to the Magistrate to treat the protest petition as a complaint and could have proceeded under sections 200 and 202, Cr.P.C. 4. It was also submitted that the affidavits of Devendra Kumar Dubey, the driver and Kamlesh Mishra and Rajendra Kumar Srivastava, the independent witnesses were also filed before the Magistrate. The complainant was medically examined on 31.12.2009 at 9:30 p.m. at Pandit Deen Dayal Upadhyay Government Hospital, Varanasi. Five injuries were found on his person including three contusions and two incised wounds. Both the incised wounds were on head and one contusion was also on upper occipital area. On X-ray of skull, no bone injury was seen. Soft tissue swelling as haematoma was seen on left side skull. CT. brain was advised. As per CT. Scan report dated 5.1.2010, hairline fracture was seen in left parietal bone. 5. I have also perused the statements of Sunil Kumar the complainant recorded under section 161 Cr.P.C and the affidavits of Devendra Kumar Arora, Kamlesh Mishra and Rajendra Kumar Srivastava submitted to the CO. (Sadar), Varanasi wherein they supported the complainant's case. Learned Magistrate disbelieved the complainant on the ground that CT. 5. I have also perused the statements of Sunil Kumar the complainant recorded under section 161 Cr.P.C and the affidavits of Devendra Kumar Arora, Kamlesh Mishra and Rajendra Kumar Srivastava submitted to the CO. (Sadar), Varanasi wherein they supported the complainant's case. Learned Magistrate disbelieved the complainant on the ground that CT. Scan was done after five days and does not bear any mark of identification. Learned Magistrate also found fault with his statement that no blood had oozed whereas, incised wounds were found as per medical report. Learned Magistrate has also found fault with the statement of the driver Devendra Kumar Dubey, who stated that at the time of incident, he hid himself whereas, the complainant stated that the driver was threatened by the accused. Learned Magistrate found these two statements contradictory, when no contradiction was there. If a witness is threatened by the accused, arid when he goes away and hides himself, there cannot be said to be any contradiction. 6. Learned Magistrate analyzed the evidence in a manner as if he was trying a criminal case after evidence. The Magistrate was not to pass a judgment of conviction or acquittal at the stage of taking cognizance. The Magistrate was only required to find out whether there were sufficient grounds for proceeding against the accused. The grounds given by the Magistrate for accepting the final report and rejecting the protest petition cannot be appreciated and are perverse. There is no requirement that a report of the C.T. Scan must bear the identification mark of the victim. Identification marks of the victim are noted in the injury report, which was prepared on the date of incident itself. The medical evidence coupled with the statements of complainant and the witnesses recorded by the investigating officer are sufficient material. Instead of relying upon the same learned Magistrate also placed reliance on the statements of strangers, who stated that no such incident took place. Those persons were not the prosecution witnesses or the witnesses cited in the FIR and any negative evidence of this type cannot be relied upon at this stage. 7. Instead of relying upon the same learned Magistrate also placed reliance on the statements of strangers, who stated that no such incident took place. Those persons were not the prosecution witnesses or the witnesses cited in the FIR and any negative evidence of this type cannot be relied upon at this stage. 7. In Pakhando and others v. State of U.P. and another a Division Bench of this Court held that on receipt of a final report and the protest petition, the Magistrate can either accept the final report if the material against the accused is not sufficient, or he may reject the final report and summon the accused if there is sufficient material in the case diary to proceed against the accused, or he may direct further investigation if the investigation was conducted in a perfunctory manner or he may treat the protest petition as a complaint and proceed under sections 200 and 202, Cr.P.C. In the instant case, the Magistrate has acted illegally in critically analyzing the evidence collected by the investigating officer and produced by the complainant and relied upon the negative evidence of strangers. Thus, the impugned order cannot be sustained. If the Magistrate was not satisfied with the material in the case diary, he could have treated the protest petition as complaint, but unfortunately, despite medical evidence supporting the complainant, the final report has been accepted in this manner and protest petition has been rejected. The impugned order passed by the Magistrate is perverse and illegal and is liable to be set aside. Revision is allowed. The impugned order dated order dated 17.7.2010 passed by A.C.J.M., Court No.1, Varanasi is set aside. 8. Chief Judicial Magistrate, Varanasi is directed to transfer this case to some other Court for taking appropriate decision on the final report submitted by the police and the protest petition filed by the complainant in view of the directions given by a Division Bench of this Court in the matter of Pakhando (supra). Revision Allowed.