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2014 DIGILAW 3301 (ALL)

NISHANT KUMAR v. STATE OF U. P.

2014-11-07

RANJANA PANDYA

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JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—This revision has been preferred against the judgment and order dated 25.4.2007 passed by the learned Additional Sessions Judge, Court No. 3, Meerut in Criminal Revision No. 527 of 2006 allowing the revision. 2. Brief facts are that an application under Section 156(3) Cr.P.C. was moved before the Magistrate, in which investigation was ordered. After investigation final report was submitted, against which protest petition was preferred. In the meantime, the accused-revisionist filed a revision and the revisional Court stayed the investigation but the police registered the case at C-10/5, but the accused was not arrested. Later on after the stay order was passed, the investigation was stayed. Thereafter, on 31.12.2005, the statement of the witnesses were recorded and the Investigating Officer on incorrect affidavits submitted the final report. The statement of the complainant under Section 161 Cr.P.C. was not recorded. Now the medical report was produced. By order dated 7.8.2006, the revisional Court directed both the parties to appear before the lower Court. Thus, both the parties appeared and the matter was heard and the order dated 25.11.2006 was passed. Feeling aggrieved the accused-revisionist preferred the present revision. 3. I have heard Shri Amit Daga, learned counsel for the revisionist, Shri A.C. Srivastava, learned counsel for the opposite party and learned AGA for the State. 4. Learned counsel for the revisionist has placed reliance upon the judgment in Sharda v. State of U.P. and others, 2007 (2) ADJ 497 , in which it has been held that the Sessions Judge was not within his jurisdiction to entertain a revision against an order, in which the Court has not taken cognizance. In the same context, learned counsel for the revisionist has placed reliance upon the judgment in Prof. Ram Naresh Chaudhary and another v. State of U.P. and others, 2008(1) ADJ 169 , in which it has been held that the proposed accused has no right to stop registration of the FIR. In the same context, learned counsel for the revisionist has placed reliance upon the judgment in Prof. Ram Naresh Chaudhary and another v. State of U.P. and others, 2008(1) ADJ 169 , in which it has been held that the proposed accused has no right to stop registration of the FIR. As far as the procedure prescribed when final report in case crime number is submitted, the courses open to the Magistrate has laid down in the case of Pakhando and others v. State of U.P. and another, 2001(43) ACC 1096, is 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; or (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; or (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 thereafter decide whether complaint should be dismissed or process should be issued. 5. Thus, the Magistrate could not have pass the orders for reinvestigation, but could only pass the order for further investigation. 6. It has been argued on behalf of the revisionist that the order of the revisional Court is bad inasmuch as only the order directing the Investigating Officer to reinvestigate the matter should have been modified and order for further investigation could have been passed and the revision was not maintainable by the proposed co-accused. 7. Since, the revisional Court had no jurisdiction to entertain the revision. I think, the order passed by the revisional Court is liable to be set aside, but as far as the order passed by the Magistrate is concerned, it would not be proper to set it aside in parts. 7. Since, the revisional Court had no jurisdiction to entertain the revision. I think, the order passed by the revisional Court is liable to be set aside, but as far as the order passed by the Magistrate is concerned, it would not be proper to set it aside in parts. The Magistrate has committed an error in ordering the reinvestigation of the matter. 8. Thus, the order under revision is liable to be allowed. The revision is allowed. The order passed by the learned Additional Sessions Judge, Court No. 3, Meerut in Criminal Revision No. 527 of 2006 on 25.4.2007 and the order passed by the Special Chief Judicial Magistrate, Meerut on 25.11.2006 are set aside. The lower Court is directed to pass a fresh order in accordance with law as per observation given in this judgment. 9. Let a copy of this order be sent to the Court concerned for compliance. 10. Interim order, if any, stands vacated. —————