HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
CRIMINAL REVISION NO. 1348 OF 2011
Mahajeet .................... Revisionist
Vs.
State of U.P. And another ....... Respondents
Hon'ble Vinod Prasad, J.
Heard Sri Dharmendra Singhal, learned counsel for the revisionist and Sri K.N. Bajpai, learned AGA in opposition.
Revisionist Mahajeet is aggrieved by the impugned order dated 29.11.2010 passed by A.C.J.M., Court No. 3, Mathura in F.R. Case No. 255/XI of 2009 (Udal Khan Vs. Mahajeet), by which order he has been summoned by the Magistrate to stand trial under Sections 307/504 I.P.C., P.S. Baldevo, District Mathura. Challenge in this revision is also to the earlier order dated 2.4.2004 passed by Sessions Judge, Mathura in criminal revision no. 192 of 2004 (Udal Khan Vs. State of U.P.), by which Sessions Judge, Mathura has allowed the revision filed by the informant and had remanded the case back to A.C.J.M., Court No. 3, Mathura for passing a fresh order after setting aside the order dated 14.1.2004 passed by A.C.J.M., Court No. 2, Mathura in relation to crime no. 465 of 2002. By the order dated 14.1.2004, final report submitted by the police in the aforesaid crime had been accepted by A.C.J.M., Court No. 2, Mathura.
Facts as are perceivable from the pleadings made in the instant revision indicate that victim Aas Mohamad S/o informant Udal Khan had gone to attend call of nature where revisionist Mahajeet vetuparized him filthily and hurling castist words, shot him in abdomen, as a result of which Aas Mohamad sustained gun shot injury. This incident had occurred on 24.7.2002 at 7.30 p.m. and was witnessed by Member S/o of Bani Singh, Krishna Kumar S/o Sunder Lal, Omveer and Chandan. FIR in respect of the said crime was lodged the same day at 8.30 p.m. at police station Baldevo, District Mathura as crime no. 465/2002, under Sections 307/504 I.P.C.
Subsequent investigation resulted in submission of final report by the police against which, a protest petition, annexure no. 2 was filed by the informant on 28.6.2003. Vide order dated 14.1.2004, A.C.J.M., Court No. 2, Mathura in the registered F.R. Case No. 22 of 2003 (Udal Khan Vs. Mahajeet), rejected the protest petition and accepted the F.R.
Challenge to the aforesaid order dated 14.1.2004 in criminal revision no. 192 of 2004 (Udal Khan Vs. State of U.P.) was successful and Sessions Judge, Mathura vide impugned order dated 2.4.2004 allowed the revision and set aside the order accepting the final report dated 14.1.2004. After receipt of the record from lower revisional court in F.R. Case No. 255/XI of 2009, which was the new allotted number to the case file, A.C.J.M., Court No. 3, Mathura vide impugned order dated 29.11.2010, summoned the revisionist to stand trial for the aforesaid offences fixing 3.1.2011 for his appearance. Hence, this revision challenging the order passed by lower revisional court as well as the summoning order dated 29.11.2010.
Sri Dharmendra Singhal, learned counsel appearing on behalf of the revisionist contends that the order of summoning is bad in law, which is based on the order passed by lower revisional court dated 2.4.2004. Assailing the order of the lower revisional court, learned counsel contends that the same has not touched the merits of the matter and is based on technicality that the accused was also heard by the Magistrate at the time of accepting the final report and, therefore, the same order suffers from illegality. It is, therefore, submitted that neither the order passed by lower revisional court, in absence of consideration of the merits of the case involved and the material contained in the case diary, is legal nor subsequent summoning order of the revisionist is sustainable and both of it deserves to be set aside. It was further submitted that the case diary did not contain sufficient material to prosecute the revisionist and, therefore, order of summoning is also bad in law.
Opposing the revisionist prayer, it was submitted by Sri K.N. Bajpai, learned AGA that the order of summoning is well merited. Lower revisional court was entitled to consider the revision only on legal question and once it found the order dated 14.1.2004 un-sustainbale, there was no impediment before it in setting it aside. Pointing out to the summoning order, learned AGA submits that the same is a well reasoned order as the materials indicated thereunder is sufficient for prosecution of the revisionist. He, therefore, submits that the impugned revision is meritless and deserves to be dismissed.
I have considered the argument raised by both the sides. The disclosed facts indicate that in a day light incident, victim was shot at by the revisionist, who had sustained injury in the stomach. During the course of the investigation, Investigating Officer had copied the injury report of the injured, had collected his blood stained attires and other relevant materials. In spite of those facts coupled with the fact that informant and the victim, had supported the manner of assault in all its facets, yet the I.O. submitted final report. A.C.J.M. Court No. 2, Mathura noticed the informant and in spite of his objection in the form of protest petition, accepted the final report in a slip shod manner by observing that the case diary does not contain sufficient material for prosecution of the accused. While considering the final report, A.C.J.M. Court No. 2, Mathura also heard the counsel for the accused.
Lower revisional court was of the opinion that hearing of the accused while considering the final report, was not a justifiable procedure adopted by the Magistrate as law does not enjoins the same. This opinion by the Sessions Judge, Mathura, does not suffer from any error as the accused had no right of hearing before he is summoned. Appearance of the accused counsel and hearing of him had done in calculable damage to the legal procedure. The plethora of decision on this aspect of the matter involving the said question indicate without any ambiguity that prior to summoning, an accused has got no right of hearing. The stage when the Magistrate was considering the final report was a pre-cognizance stage. At that stage, law does not permit any hearing to an accused person, who is yet to be summoned. To the contrary, as was done by the Magistrate, the Apex Court has held that prior to summoning, an accused does not have a right of hearing. This well settled procedure of law was completely upturned by A.C.J.M. Court No. 2, Mathura when he permitted counsel for the accused to intervene in the judicial proceedings. The procedure so adopted by the Magistrate, therefore, was unsanctified and cannot be countenanced. Lower revisional court, therefore, committed no error in upsetting the order passed by the Magistrate of accepting the final report as the procedure was smudged by induction of hearing of accused, who was not even summoned at that stage. In this backdrop opinion of Sessions Judge, Mathura in the impugned order dated 2.4.2004, therefore, cannot be faulted with.
Further the impugned order of summoning dated 29.11.2010, also does not suffer from any error of law or that of fact. It is a well reasoned order after considering the merits of the incident and the evidences brought on the record. Learned Magistrate has in detailed examined the merits of allegations and had noticed that the case diary contains the statements of the informant, his wife Smt. Hafizan, eye witnesses Member, Krishna Kumar, Omveer Singh and that of injured victim Aas Mohamad. All the aforesaid persons have supported the FIR version in toto. Medical report of victim Aas Mohamad indicated sustaining of gun shot injury on the stomach for which X-ray was also advised. Blood stained clothes of the victim were also seized and seizure memo of it was also prepared. On the basis of materials contained in the case diary, prima facie offences under Sections 307/504 I.P.C. was disclosed and, therefore, A.C.J.M. Court No. 3, Mathura committed no error in rejecting the F.R. and summoning the revisionist. The opinion of the Magistrate cannot, therefore, be castigated.
This revision, therefore, is meritless and is dismissed with a direction that in case the revisionist surrenders within a period of two weeks from today, his bail prayer may be considered expeditiously without unreasonable delay, if possible on the same day in the aforesaid case by the courts below.
The revision stands dismissed.
Dt.18.4.2011 AKG/-1348/2011