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2010 DIGILAW 2347 (ALL)

Mahendra and others v. State of U. P. and another

2010-08-04

SHRI KANT TRIPATHI

body2010
Shri Kant Tripathi,J.:- Heard Mr. Amit Mishra for the applicants and Sri PS Pundir for the respondent no. 2 and the learned AGA for the respondent no. 1 and also perused the record. 2. This is a petition under section 482 of the Code of Criminal Procedure (in short "the Code") for quashing the order dated 05.05.2008 passed by the II-Judicial Magistrate, Court No. 15, Saharanpur in Criminal Case No. 347 of 2008 (Kuldeep v Mahendra & others) arising out of Case Crime No. 46 of 2007 under sections 307, 324, 504 and 506 IPC, P.S. Rampur Maniharan, District Saharanpur. 3. It appears that in the aforesaid case, the Police submitted a final report against which the respondent no. 2 filed a protest petition along with his own affidavit and the affidavits of the witnesses, namely; Rajveer, Raj Singh, Ved Pal and Sandeep. The learned Magistrate perused the case diary and the statements of the complainant and the injured recorded by the Investigating Officer and also took into account the injury report of the injured and arrived at the conclusion that the final report was not justified and as such he rejected the final report and directed issue of processes against the applicants. 4. Mr. Amit Mishra, the learned counsel for the applicants submitted that the impugned order passed by the learned Magistrate was unwarranted in law in view of the fact that he took into account the affidavits filed by the complainant and the witnesses. Instead he could pass the order only on the basis of the materials collected during the investigation. The impugned order, which is based on extraneous materials, is bad in law. 5. The aforesaid submission of the learned counsel for the applicant does not appear to have any merit. 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 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 arrive at his own conclusion. The power of the Magistrate is 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 arrive 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 vs. State of Bihar (2006) 4 SCC 359 : 2006 (2) ACR 1714 (SC) : Popular Muthiah vs. State (2006) 7 SCC 296 : 2006 (2) ACR 2157 (SC), Abhi Nandan Jha vs. Dinesh Mishra, AIR 1968 SC 117 and Gangadhar Janardan Mhatre vs. State of Maharashtra (2004) 7 SCC 768 : 2004 (3) ACR 2758 (SC).. 6. 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 Cr.P.C. 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 CrPC. 7. It is no doubt true that the learned Magistrate has referred to the affidavits of the respondent no. If any protest petition is treated as complaint, it should be dealt with in accordance with Chapter XV of CrPC. 7. It is no doubt true that the learned Magistrate has referred to the affidavits of the respondent no. 2 and other witnesses in paragraph 3 of the order dated 05.05.2008 but he has nowhere took into account the affidavits while passing the order. The learned Magistrate appears to have perused the Police report and the materials collected during the investigation and on the basis of such materials, held that a prima facie case under sections 307, 324, 504 and 506 IPC was made out for summoning the applicants. Therefore, the learned Magistrate does not appear to have taken into account any extraneous material while passing the impugned order. 8. The petition has, therefore, no merit and is accordingly dismissed.