Jitendra Pal Singh vs State Of U.P. & Others
2014 Latest Caselaw 546 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 25
 

 
Case :- CRIMINAL REVISION No. - 459 of 2012
 

 
Revisionist :- Jitendra Pal Singh
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Revisionist :- M.P.S. Chauhan
 
Counsel for Opposite Party :- Govt. Advocate,B.D.Sharma
 

 
Hon'ble Akhtar Husain Khan,J.

Present revision has been filed by revisionist Jitendra Pal Singh under section 397/401 Cr.P.C. against the judgement and order dated 24.1.2012 passed by learned Additional Sessions Judge, Court No.19, Aligarh in Criminal Revision No.817 of 2011 (Rajpal Singh and another Vs. State of U.P. and another).

By the impugned order, learned Additional Sessions Judge, Court No.19, Aligarh has allowed the said revision filed against order dated 11.11.2011 passed by learned Additional Chief Judicial Magistrate, Court No.1, Aligarh in Case No.140/12/2010, whereby learned Additional Chief Judicial Magistrate has rejected final report filed by the police in Crime No.207 of 2010, under Section 307 I.P.C. and summoned Rajpal Singh and Banti alias Bhanu Pratap Singh for offence punishable under section 307 I.P.C. Learned Sessions Judge vide his impugned order dated 24.1.2012 set aside the order of Additional Chief Judicial Magistrate and remanded the matter to learned Additional chief Judicial Magistrate for passing fresh order in the light of his views expressed in his impugned judgement and order. Therefore, complainant Jitendra Pal Singh has preferred this revision before this Court against impugned judgement and order dated 24.1.2012 passed by Additional Sessions Judge with prayer to set aside it.

I have heard learned counsel for the revisionist and learned A.G.A. I have perused affidavits filed by parties.

None has appeared on behalf of opposite parties no. 2 and 3 even list was revised.

Learned counsel for the revisionist has submitted that learned Additional Chief Judicial Magistrate, Court No.1, Aligarh vide order dated 11.11.2011 has rightly taken cognizance under section 190(1)(b) Cr.P.C. after rejecting final police report submitted by the police. He has recorded sufficient ground for rejecting final police report and for presuming prima facie offence punishable under section 307 I.P.C. against opposite party nos. 2 and 3 of the present revision.

Learned counsel for the revisionist has further submitted that the impugned judgement and order passed by learned Additional Sessions Judge in revision is against law.

Learned A.G.A. has conceded that the impugned judgement and order passed by learned Additional Sessions Judge is not in accordance with law.

I have considered submissions made by learned counsel for the revisionist as well as by learned A.G.A.

In brief relevant facts for determination of this revision are that the present revisionist Jitendra Pal Singh lodged a written report against opposite parties no. 2 and 3 in Police Station Khair, District Aligarh on the basis of which Crime No.260 of 2010, under section 307 I.P.C. was registered against opposite parties no. 2 and 3, but after investigation police submitted final report under section 173(2) Cr.P.C. Thereafter complainant-revisionist-Jitendra Pal Singh presented protest petition before learned Additional Chief Judicial Magistrate against final report submitted by the police. Thereupon learned Additional Chief Judicial Magistrate passed the impugned order dated 11.11.2011 and after rejecting final report submitted by the police he took cognizance under section 190(1)(b) Cr.P.C. of Criminal Procedure Code and summoned opposite parties no. 2 and 3 of this revision for offence punishable under Section 307 I.P.C. Then being aggrieved by this summoning order passed by learned Additional Chief Judicial Magistrate, opposite parties no. 2 and 3 of the present revision filed Criminal Revision No.817 of 2011 (Rajpal Singh and another Vs. State of U.P. and another) against said summoning order before the Court of Sessions Judge. The said revision was transferred to the court of Additional Sessions Judge, Court No.19, Aligarh, who decided the said revision vide his impugned order dated 24.1.2012.

In his impugned order learned Additional Sessions Judge has recorded finding that on the basis of discussion made in the judgement and materials available on record alleged incident has been found totally false and there is no sufficient ground for taking cognizance. Learned Additional Sessions Judge has also come to conclusion that learned Magistrate should have accepted the final report and in view of above conclusions learned Additional Sessions Judge has allowed the revision and remanded the case to the learned Additional Chief Judicial Magistrate after setting aside impugned order dated 11.11.2011 passed by learned Additional Chief Judicial Magistrate with direction to pass afresh order in the light of conclusions drawn in his impugned judgement dated 24.1.2012.

Perusal of the impugned order dated 11.11.2011 passed by learned Additional Chief Judicial Magistrate shows that final report had been submitted by the police against accused (opposite parties nos. 2 and 3) on the following grounds: -

1. That accused (opposite parties no. 2 and 3 are resident of Teacher Colony, Shasni, Mahamaya Nagar and both were present in their village on the date of occurrence i.e. 23.5.2010.

2. That no mark of pellets were found on the walls at place of occurrence.

3. That there is no independent eye witness of the incident and there is an enmity of civil litigation between the parties.

Learned Magistrate has considered the aforesaid alleged grounds of final report in his impugned order dated 11.11.2011 at length. He has held that plea of alibi cannot be accepted at the time of taking cognizance. The plea of alibi shall be decided by the court after trial. In his impugned order, learned Magistrate has further mentioned that according to the case diary investigating officer has recorded statement of injured complainant Jitendra Pal Singh under section 161 Cr.P.C. He has also recorded statements of witnesses Jugendra Pal Singh and Raju under section 161 Cr.P.C. Learned Magistrate has specifically mentioned in his impugned order dated 11.11.2011 that according to the injury report the complainant had sustained fire arm injury. Thus considering statements of injured complainant-Jitendra Pal Singh as well as witnesses Jugendra Pal Singh and Raju recorded under section 161 Cr.P.C. and injury report. Learned Magistrate has rejected final report and summoned opposite parties no. 2 and 3 for offence punishable under section 307 I.P.C. Therefore, it is apparent from the impugned order passed by learned Magistrate that on the basis of evidence collected by the investigating officer only learned Magistrate has taken cognizance. Therefore, he has taken cognizance under section 190(1)(b) Cr.P.C.

In the case of Robindra Nath Shrivastava Vs. State of Bihar, 2007 Cr.L.J. 350. The Hon'ble High Court Patna has held that it is well settled that at the time of taking cognizance the Magistrate has only to see whether the complaint petition discloses offences against the accused and whether there is evidence to support the same. The Magistrate is not required to consider the defence of the accused. The defence of the accused is irrelevant for the purpose of taking cognizance of offence.

In view of this pronouncement the Hon'ble High Court Patana, it is apparent that in his impugned order of summoning learned Magistrate has rightly held that alleged plea of alibi shall be considered at the time of trial and the final report submitted by the police on the ground of plea of alibi is not acceptable.

In the case of State of Himachal Pradesh Vs. Mast Ram; (2004) 8 SCC 660. The Hon'ble Supreme Court has held that the law on the point is well settled that the testimony of the relative witnesses cannot be disbelieved on the ground of relationship. The only main requirement is to examine their testimony with caution.

In Raman Kalia Vs. State of Gujrat A.I.R. 1979 S.C. 1261 Honourable Apex Court has held that enmity is no ground for discarding the evidence of witness.

The statements of injured complainant-Jitendra Pal Singh as well as witnesses Jugendra Pal Singh and Raju recorded under section 161 Cr.P.C. fully support the allegations made in the F.I.R. and in view of the aforesaid judgement of Hon'ble Supreme Court rendered in the case of State of Himachal Pradesh Vs. Mast Ram; (2004) 8 SCC 660, and in the case of Raman Kalia Vs. State of Gujrat A.I.R. 1979 S.C. 1261 it is apparent that the statements of these witnesses may not be discarded merely on the ground of relationship with the complainant or enmity. The statements of these witnesses are corroborated by the injury report of complainant injured Jitendra Pal Singh. Therefore, evidence collected by the investigating officer himself appears sufficient to proceed against opposite parties no. 2 and 3 for offence punishable under section 307 I.P.C.

In view of above, I am of the view that learned Additional Chief Judicial Magistrate has rightly rejected the final report and took cognizance under section 190(1)(b) of Cr.P.C. for offence punishable under section 307 I.P.C.

In the case of Fakhruddin Ahmad Vs. State of Uttaranchal and another; 2008 (6) A.L.J. 249 (S.C.). The Hon'ble Supreme Court has held that "On receiving the police report, if the Magistrate is satisfied that on the facts discovered or covered or unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence under Section 190(1)(b) and issue process straight way to the accused."

In the case of Ganga Ram Vs. State of U.P., 2006 Cr.L.J. 687 All. L.J. this Court has held that where though protest petition has been filed, but the Magistrate does not follow the procedure for complaint case does not record evidence under Sections 200 and 202 Cr.P. C. takes cognizance on the perusal of the case diary and other material on record, he takes cognizance under Section 190(1)(b) Cr.P.C. and not under Section 190(1))a) Cr.P.C.

The facts mentioned above show that learned Magistrate vide his order dated 11.11.2011 has taken cognizance only on the basis of evidence collected by the investigating officer. Therefore, in view of case laws referred above, he is perfectly right in taking cognizance under section 190(1)(b) and has rightly summoned opposite parties no. 2 and 3 for offence punishable under section 307 I.P.C.

In the case of Keshaba Jena Vs. Pradipta Kishore (1989) 2 Crimes 170 (Orissa) and Ashwani Kumar Vs. State (Delhi Administration) 1992 Crl.L.J. 446 (Delhi). The Hon'ble High Courts of Orissa and Delhi have held that at the stage of taking cognizance and issue of process Magistrate is mainly concerned with the allegation made in the complaint or the evidence led in support of the same and he has only to be prima facie satisfied whether there was sufficient ground for proceeding against accused. Entering detailed discussion as to merits and demerits of the case is outside his province.

Perusal of the impugned judgement and order dated 24.1.2012 passed by learned Additional Sessions Judge shows that he has considered the evidence as well as merits and demerits of the case as trial court and has recorded finding that on the basis of discussion made in the judgment and materials available on record alleged incident has been found false. This type of finding of fact is beyond jurisdiction of revisional court and in view of discussions made above, there appears no sufficient ground for interference by Additional Sessions Judge in the impugned summoning order dated 11.11.2011 passed by Magistrate. Therefore, I am of the view that the impugned judgment and order passed by learned Additional Sessions Judge is against law.

In view of conclusions drawn above, I am of the view that the impugned judgment and order dated 24.1.2012 passed by learned Additional Sessions Judge should be set aside and learned Magistrate should proceed further in pursuance of his impugned order dated 11.11.2011. Therefore, the revision is liable to be allowed. Hence the revision is allowed and the impugned judgment and order dated 24.1.2012 passed by learned Additional Sessions Judge is set aside. Learned Additional Chief Judicial Magistrate shall proceed further in pursuance of his impugned order dated 11.11.2011 in accordance with law.

Order Date :- 4.4.2014

RU