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Allahabad High Court · body

2014 DIGILAW 2445 (ALL)

FAKIRA v. STATE OF U. P.

2014-08-12

HARSH KUMAR

body2014
JUDGMENT Hon’ble Harsh Kumar, J.—Heard Shri Chandra Kumar Singh, Advocate holding brief of Shri Rajul Bhargava, learned counsel for the revisionist, Shri R.C. Maurya, Advocate holding brief of Shri Arun Kumar Soni, learned counsel for the opposite parties and learned AGA for the State. 2. The present revision has been filed against the judgment and order dated 18.4.2009 passed by Additional Sessions Judge, Court No. 18, Agra in Criminal Revision No. 206 of 2008 (Smt. Tara Devi v. State of U.P.) whereby the Additional Sessions Judge setting aside the order dated 3.7.2008 passed by Judicial Magistrate, Agra in Criminal Misc. Case No. 4 of 2008 (Smt. Tara Vati v. Fakira) remanded the case for proceeding in accordance with the observations made in the judgment and the law laid down by Hon’ble High Court and procedure laid down by law. 3. The brief facts relating to the case are that upon the application of Smt. Tara Vati under Section 156(3) Cr.P.C., in furtherance of the order of Magistrate, Case Crime No. 177 of 2007 under Sections 452/376 IPC was registered against Fakira, revisionist on 10.6.2007 and upon investigation final report was submitted by the investigating officer the very next day on 11.6.2007. The prosecutrix filed protest petition and upon hearing the Magistrate vide order dated 12.12.2007 rejected the final report and directed police station concerned for further investigation through some competent investigating officer. After further investigation, again final report was submitted and the prosecutrix again filed protest petition against the final report. This time after hearing counsel for prosecutrix, the Magistrate, vide order dated 3.7.2008 rejected the protest petition and accepted the final report. 4. Feeling aggrieved with the order dated 3.7.2008, the prosecutrix filed Criminal Revision No. 206 of 2008 before the Sessions Judge, Agra and vide impugned judgment and order dated 18.4.2009 the Additional Sessions Judge held that the prosecutrix has stated that the accused had entered in her house and committed rape on her and on her alarm, the village people who arrived there, rescued her and caught the accused at the spot and handed over to the police, so in view of the facts the Magistrate has acted wrongly in accepting the final report. Consequently allowing revision and setting aside order dated 3.7.2008, the Magistrate was directed to proceed in accordance with law. 5. Feeling aggrieved, the accused has preferred this revision. Consequently allowing revision and setting aside order dated 3.7.2008, the Magistrate was directed to proceed in accordance with law. 5. Feeling aggrieved, the accused has preferred this revision. The learned counsel for the revisionist submitted that the revisionist was not impleaded as opposite party No. 2 in Criminal Revision No. 206 of 2008 and the Criminal Revision No. 206 of 2008 was decided without affording opportunity of hearing to the revisionist, which is wrong and against the provisions of Section 401 (2) Cr.P.C; that during further investigation, the prosecutrix had filed a complaint case against the revisionist in respect of same incident which was subsequently not pressed by her and she got it dismissed; that the fact regarding filing of complaint case and its rejection was concealed by the prosecutrix from the Additional Sessions Judge and she has obtained an order behind the back of revisionist; that the case of prosecutrix is false and after investigation and further investigation no sufficient evidence was found by the investigating officer; that the final report submitted by Investigating Officer was rightly accepted by the Magistrate and the learned Additional Sessions Judge acted wrongly and illegally in setting aside the order of Magistrate and remanding the case for further disposal; that the impugned order of Additional Sessions Judge is wrong on fact and law and is liable to be set aside. 6. 6. The learned counsel for the opposite parties defended the impugned order and argued that the revisionist/accused is an influential person because of which despite catching him at the time of occurrence on the spot and handing over to police, the police did not lodge F.I.R. of prosecutrix regarding the above incident dated 20.5.2007 compelling her to take redress of Court by way of an application under Section 156 (3) Cr.P.C; that by the order of the Magistrate the case was registered on 10.6.2007 against the revisionist under Sections 452 and 376 I.P.C. at Case Crime No. 177 of 2007 but the investigating officer in connivance with the accused/revisionist submitted the final report on very next day i.e., 11.6.2007 and despite order of Magistrate rejecting that final report and ordering further investigation vide order dated 12.12.2007 the Investigating Officer again submitted final report which shows that I.O was under influence of accused/revisionist; that the order of Magistrate dated 3.7.2008 accepting final report and rejecting protest petition is an order passed at pre-cognizance stage and so in revision against that order, the prospective accused, the revisionist, before this Court, was neither necessary party and nor was required to be impleaded as opposite party No. 2; that in the revision filed before the Additional Sessions Judge under the provisions of Section 397 Cr.P.C, there was no need for affording opportunity of hearing to the accused; that in any case impugned order passed by the Additional Sessions Judge no prejudice is being caused to the accused and there was no requirement for affording opportunity of hearing to the accused, personally or through pleader, before passing impugned order; that even by the impugned order the Sessions Judge has not directed the Magistrate to take cognizance of the offence and so also neither the accused revisionist, against whom no cognizance has been taken, has been prejudiced by the impugned order of Additional Sessions Judge nor he can be considered to be aggrieved from the above impugned order; that the allegations about filing of alleged complaint case and its dismissal on not being pressed has no relevancy and the revisionist may not take benefit of alleged filing and dismissal of any such complaint case. 7. 7. It is settled principle of law that in a case where after investigation final report is submitted under Section 173 Cr.P.C. and the complainant/first informant filed protest petition before the Magistrate, the Magistrate has four options viz, (i) to accept the final report and reject the protest petition; (ii) to reject the final report and direct for further investigations; (iii) to reject the final report and take cognizance against the accused upon material available on record and case diary under the provisions of Section 190(1)(a) Cr.P.C. or (iv) to treat the protest petition as complaint, record the statements of complainant/first informant and his/her witnesses and proceed under the provisions of Section 190(1)(b) Cr.P.C. This view also finds support from law laid down by Hon’ble Apex Court in Popular muthiah v. State, (2006) 7 SCC 296 . 8. By the impugned judgment and order the Additional Sessions Judge has found that in view of the averments of prosecutrix regarding committal of rape by the accused after entering in her house, of catching him at the time of occurrence and handing over to police etc. the order of Magistrate accepting the final report was wrong and incorrect and finding it to be wrong and incorrect, the Additional Sessions Judge setting aside the order of Magistrate, has only directed to proceed in accordance with law. By the impugned order dated 18.4.2009, the Magistrate has not been directed to reject the final report and take cognizance, but has been directed to only proceed in accordance with law. As far as the filing of complaint case by prosecutrix/first informant during pendency of investigation and getting it rejected as not pressed is concerned, the revisionist if required may have opportunity and remedy to raise this plea, as and when the occasion arises. 9. Upon hearing parties’ counsel and perusal of record, I find that at the time of filing of protest petition by the complainant, against final report, there was pre-cognizance stage of the matter before the Magistrate, and against the order of accepting the final report and rejecting protest petition, the Criminal Revision No. 206 of 2008 before Sessions Judge was also filed before at pre-cognizance stage. Undisputedly, even by the impugned order dated 18.4.2009 neither cognizance has been taken nor any direction has been given for taking cognizance and the direction is only for afresh disposal in the matter, and so by the impugned order the revisionist may not be considered to have been prejudiced to any extent and may not be treated to be aggrieved. It is also noteworthy that since the matter is at pre-cognizance stage, the revisionist is still within the category of prospective accused against whom cognizance of any offence has not been taken as yet (and at the stage of pre-cognizance the opportunity of hearing to a prospective accused has not been provided under law). In view of the facts and circumstances mentioned above, since no cognizance has been taken the provisions of Section 401 (2) Cr.P.C. are not attracted in this case. In view of the discussions made above, I do not find any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or setting it aside the impugned order. 10. The revision is devoid of merits and is liable to be dismissed. The revision is dismissed accordingly. Interim order, if any, stands vacated. Let a copy of this order be sent to C.J.M., Agra for afresh disposal of protest petition of opposite party No. 2 Tara Devi, in accordance with law, after affording reasonable opportunity of hearing to the complainant/ prosecutrix. Since the matter is quite old, the Magistrate shall ascertain afresh disposal expeditiously and if possible within one month. —————