Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1011 (ALL)

Abdul Gaffar v. State of U. P.

2010-03-26

SHRI KANT TRIPATHI

body2010
JUDGMENT Shri Kant Tripathi, J. (1) Heard Sri S.P. Singh Somvanshi for the petitioners and the learned counsel for the respondent No. 3 and the learned AGA for other respondents and perused the material on record. (2) It appears that Case Crime No. 164 of 1999 under Sections 324, 452, 307, 308 and 506 IPC, P.S. Patti, District Pratapgarh was registered against the petitioners. After concluding the investigation, the Police filed a final report indicating that no case was made out against the petitioners. The respondent No. 3 filed a protest petition against the final report and in support thereof filed affidavits of the witnesses, namely, Yasin, Bablu, Nazeer Khan and Anees. The learned Magistrate after considering the materials collected during investigation arrived at the conclusion that the injured witness had supported the FIR version during the investigation and the injury report prepared on his medical examination was also there. The learned Magistrate was of the view that the statement of the complainant duly corroborated with the injury report, was sufficient to make out a prima facie case against the petitioners. It was also found that the investigation officer had ignored the injuries without any proper reason nor he made any attempt to get the statements of the complainant and other witnesses recorded under Section 164 of the Code of Criminal Procedure (in short "the Code"). Keeping in view the entire facts and circumstances of the case, the learned Magistrate was of the view that there was sufficient ground to proceed with the case against the petitioners under Sections 323, 324, 504 and 506 IPC. The learned counsel for the petitioners submitted that the petitioners had old enmity with respondent No. 3 and a civil and criminal proceedings were going on between the parties. The instant case was concocted due to the enmity. It was further submitted that the learned Magistrate had no power to reject the final report and take cognizance of the offences. (3) In regard to the police report, whether it is in the form of charge-sheet or the final report, the power of the Magistrate is also well settled. The Magistrate is not bound by the conclusion of the police. Whenever any police report is submitted, the Magistrate may agree with the report and accept the same. He may, in a given situation, disagree with the conclusion of the police and arrived at his own conclusion. The Magistrate is not bound by the conclusion of the police. Whenever any police report is submitted, the Magistrate may agree with the report and accept the same. He may, in a given situation, disagree with the conclusion of the police and arrived at his own conclusion. In the matter of final report too, the Magistrate may disagree with the report and take cognizance of the offence, if he, after applying his mind to the facts emerging from the investigation, is of the view that there is sufficient material to summon the accused and proceed with the case. In other words, the Magistrate is competent to reject the final report and take cognizance of the offence if a prima facie case is made out against the accused from the materials collected during the investigation. In appropriate cases, the Magistrate, after disagreeing with the report, may direct for further investigation. These principles have been settled by the Apex Court in several cases and some of them are, Minu Kumari v. State of Bihar (2006) 4 SCC 359 : ( AIR 2006 SC 1937 ), Popular Muthiah v. State (2006) 7 SCC 296 , Abhi Nandan Jha v. Dinesh Mishra, AIR 1968 SC 117 and Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768 : ( AIR 2004 SC 4753 ). (4) The law in regard to the protest petition is also well settled. If any protest petition is filed against the final report, the Magistrate may proceed to examine the matter on the basis of materials collected during the investigation and to see whether or not any case for taking cognizance of the offence is made out from the materials collected during the investigation. If a prima facie case is made out, the Magistrate may take cognizance of the offence under section 190 (1) (b) of Code and reject the final report. But if such materials do not make out any case for taking cognizance of the offence, the Magistrate may, in that situation, treat the protest petition as complaint. If any protest petition is treated as complaint, it should be dealt with in accordance with Chapter XV of Code. But if such materials do not make out any case for taking cognizance of the offence, the Magistrate may, in that situation, treat the protest petition as complaint. If any protest petition is treated as complaint, it should be dealt with in accordance with Chapter XV of Code. Therefore, the learned Magistrate was well within his jurisdiction to reject the final report and take cognizance of the offences, when he had arrived at the conclusion that there was sufficient ground to proceed with the case and summon the petitioners. (5) BUT keeping in view the facts and circumstances of the case and long standing enmity between the parties and also the fact that the case relates to the year 1999, I consider it just and expedient to grant some relief to the petitioners in regard to disposal of their bail applications. (6) It is, therefore, provided that the bail prayer of the applicants Abdul Gaffar and Abdul Bahav in criminal case No. 1225 of 2004 (Crime No. 164 of 1999) under sections 323, 324, 504 and 506 IPC, P.S. Patti, District Pratapgarh pending in the court of Judicial Magistrate, Pratapgarh, shall be disposed of on the same day by the courts below in the light of the principles laid down in the case of Lal Kamlendra Pratap Singh v. State of U.P. and others (2009) 4 SCC 437 . With the aforesaid observations, the petition under section 482 of the Code finally disposed of. Order accordingly.