Allahabad High Court
Hargyan vs State Of U.P. & Another on 11 October, 2011
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL REVISION No. - 4207 of 2011
Petitioner :- Hargyan
Respondent :- State Of U.P. & Another
Petitioner Counsel :- L.S. Yadav
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
Heard learned counsel for the revisionist and learned A.G.A. for the State and perused the material available on record.
No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he/she feels so aggrieved.
This revision under section 397/401 Cr.P.C. is directed against order dated 6.7.2011 passed by Judicial Magistrate, Moradabad in criminal case no.1394 of 2010 (Smt. Sudha Rani Vs. Hargyan and others) arising out of case crime no.524 of 2008, P.S. Behjoi, District Moradabad, whereby the final report submitted by the police was rejected, cognizance was taken and the revisionist Hargyan was summoned to face trial under sections 376, 506 IPC.
Learned counsel for the revisionist submitted that the Magistrate has neither taken cognizance on the basis of material available in the case diary nor the procedure prescribed for complaint cases was adopted, but a novel method was adopted by the Magistrate and cognizance has been taken on the basis of affidavits of the complainant and the witnesses Chandra Pal and Guljari.
A perusal of the impugned order reveals that the Magistrate has criticized the investigating officer for not recording the statement of witness Guljari, not getting the statement of the victim recorded under section 164 Cr.P.C. and for not taken into possession the clothes of the victim and not sending them for analysis to public analyst.
A Division Bench of this Court in the case of Pakhando and others Vs. State of U.P. and another, 2001 (43) ACC 1096, held that on receipt of a final report submitted by the police and a protest petition being filed by the complainant, the Magistrate has following four courses opened to him :-
(1) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant ; or
(2) He may take cognizance under Section 190 (1) (b) and issue process straightway 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
(3) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner ; or
4) 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 Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
In the instant case, learned Magistrate has not adopted any of the four courses available to him. If there was sufficient material available in the case diary, the Magistrate could have taken cognizance under section 190 (1) (b) Cr.P.C. on the basis of material available in the case diary. If the investigation was not conducted properly, the Magistrate could have directed further investigation giving specific directions on the points on which further investigation was required. If the Magistrate was of the opinion that no case for trial is made out, he could have accepted the final report and rejected the protest petition and lastly the Magistrate could have treated the protest petition as a complaint and adopted the procedure prescribed for complaint cases.
In the instant case, neither cognizance was taken on the basis of the material available in the case diary nor the protest petition was treated as a complaint. The cognizance cannot be taken on the basis of affidavits of the complainant or the witnesses, therefore, the order passed by the Magistrate cannot be sustained and is liable to be set-aside.
Revision is allowed.
The impugned order dated 6.7.2011 is set-aside.
Learned Magistrate is directed to take a fresh decision on the final report in the light of a Division Bench decision of this Court in case of Pakhando (supra).
Order Date :- 11.10.2011
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