Mukeem And 2 Others vs State Of U.P. And Another
2015 Latest Caselaw 1671 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 1601 of 2015
 

 
Revisionist :- Mukeem And 2 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- R.P.S. Chauhan,Pusp Raj Singh
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Mukhtar Ahmad,J.

This criminal revision has been preferred against the order dated 4.3.2015, passed by learned Chief Judicial Magistrate, Fatehpur in Case No. 799 of 2015, arising out of Case rime No. 67 of 2013 under Section 302 I.P.C., P.S. Lalauli, District Fatehpur, whereby learned Magistrate has summoned the revisionist for facing trial under Section 302 I.P.C. on the protest petition filed by the first informant.

The facts giving rise to this revision are that an F.I.R. was got lodged by the first informant Nafees stating that his father Rahees Ahmad was engaged in sale-purchase business of he- goats.In the night of 11.4.2013 he went to Bahuwa for purchase of he-goats and was returning to his village Dulapur on his motorcycle, when he reached Wahidapur, accused revisionists Mukeem, Rasheed and Mobeen who have enmity, commited murder of his father Rahees and put motorcycle on his dead body. In this regard the F.I.R. was registered at police station Lalauli being Case Crime No. 67 of 2013 under Section 302 I.P.C. Police investigated the matter and submitted final report. Against the final report the first informant-respondent no. 2 filed protest petition in which no evidence was lead and it was allowed on 4.3.2015.Rejecting the final report, accused-revisionists were summoned for facing the trial under Section 302 I.P.C, which is assailed in this revision.

I have heard learned counsel for the petitioner and learned A.G.A. for the State.

Learned counsel for the revisionists has argued that the Investigating Officer submitted final report on the basis of the evidence recorded by him during investigation and learned Magistrate on the protest application has directly summoned the witnesses without any further evidence. Attention is drawn towards the findings of the learned Magistrate by saying that though it has been opined by the Magistrate that I.O. was negligent in recording the evidence of the witnesses yet order of summoning has been passed. It is further submitted that at the most further investigation was required to be ordered. He has also vehemently argued that reference of oral testimony is given in the order impugned but no such evidence was ever recorded, which is possible only when protest petition is treated as complaint. That learned trial court ignoring all these facts drawn a wrong conclusion while passing the impugned order.

Learned A .G .A. has denied the submissions made on behalf of the revisionists by saying that cognizance under Section 190(i)(b) Cr .P.C. can be taken only upon police report and not on the basis of the extraneous materials, thus there is no illegality in the impugned order.

I have given thoughtful consideration to the contentions of the parties.

In Ranjeet Singh and others v/s State of U.P.2000(1)JIC 399 Full Bench of this court discussing various case laws has observed that after concluding the investigation if final report is filed by the police ,the three options open before the magistrate are(1) He may accept the report and drop the proceeding, or (2) He may disagree with the report and take the view that there is sufficient ground for proceeding further take cognizance of the offence and issue proceeds, or (3) He may direct further investigation to be made by the Police under Sub-section (3) of Section 156.

In case of Kallu and others Vs. State of U.P. Reported in 2010(69) ACC 780 the Court while discussing various case laws on the point in para 10 of the judgment observed that "therefore in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint but after following procedure laid down under Section 200 and 202 Cr.P.C".

If after taking evidence under Section 200 and 202 Cr.P.C. the magistrate decides to take cognizance against the accused persons, final report has to be rejected but in any case cognizance cannot be taken merely on the basis of affidavit or other material filed by the complaint in support of the protest petition against final report without following procedure laid down under Chapter XV Cr.P.C, if the material in the case diary is not sufficient to take cognizance.

Same view was expressed in case of Mitrasen Yadav Vs. State of U.P. Reported in 2010(69) ACC 540 and has been held that on the basis of the protest petition and documents filed therewith, no cognizance under Section 190(i)(b) Cr. P.C. can be taken.

The Division Bench of this Court in case of Aakahnda and others Vs. State of U.P. And others, reported in 2001(43) ACC 1067 has held as under :-

"That on filing final report, cognizance cannot be taken on the basis of extraneous material like affidavit filed in support of the protest petition against final report and if the material in the case diary is not sufficient for summoning the accused persons then the procedure laid down in Chapter XV Cr.P.C. is to be followed after treating the protest petition as complaint."

It is clear from the above case laws that if in any case the final report is submitted by the police, against which protest petition is filed by first informant then magistrate has following three options:-

1-He may accept the final report and drop the proceedings, or

2-He may direct the police for further investigation, or

3-He may summon the accused on further two grounds:

(A) If he chooses to summon the accused on the bases of evidence collected by the Investigation officer, he may do so directly without any further evidence. or

(B) If accused is summoned on the basis of protest petition, relying on extraneous material filed with protest petition, then he has to follow the procedure laid down under chapter XV of Cr. P.C. i.e. to treat the protest petition as complaint and record the evidence u/s 200 and 202 Cr P.C. and cognizance cannot be taken on the basis of extraneous material u/s 190 (1)(b) Cr .P.C, without following the aforesaid procedure.

In the matter in hand learned Magistrate while deciding the protest petition has observed as under-

"bl izdkj izksVsLV drkZ dh vksj ls ekSf[kd lkf{k;ksa dh lk{; o vU; izi=ksa ds voyksdu ls Li"V gksrk gS fd foospd }kjk tks vafre fjiksVZ is'k dh x;h gS] og euekus

p'enhn lkf{k;ksa ds c;ku fy;s tkus es mis{kk dh x;h gSA ,slh fLFkfr esa foospd dh vksj ls izLrqr ,Q0vkj0 la[;k [email protected] fujLr dh tkrh gS rFkk izksVsLV drkZ dh vksj ls izLrqr izksVsLV izkFkZuki= o vfHkys[kh; lk{; ds vk/kkj ij vfHk;qDrx.k eqdhe iq= gdhe] jlhn iq= vtht o ekschu iq= b'kgkd ds fo:) Ik;kZIr lk{; miyC/k gksus ds dkj.k izFke n`"V;k vUrxZr /kkjk 302 Hkk0na0ala0 esa rgr ryc fd;s tkus dk vk/kkj Ik;kZIr gSA vfHk;qDr tfj;s leu mijksDr /kkjkvksa es ryc fd;k tk;sA i=koyh okLrs gkftjh fnukad 06-4-2015 dks is'k gksA "

The impugned order shows that the Magistrate summoned accused persons presuming that oral evidence on behalf of first informant was adduced on protest petition, which is possible only when the protest petition was ordered to be treated as a complaint. The record shows that neither protest petition was ordered to be registered as complaint nor any oral evidence of the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there was no sufficient material for taking cognizance. The learned Magistrate has also observed that the I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also based on facts mentioned in the protest petition and documentary evidence, as mentioned in the order impugned ''''izLrqr izksVsLV izkFkZuki= o vfHkys[kh; lk{; ds vk/kkj ij **which is erroneous in view of the law cited above.

Going through the aforesaid discussions, it comes out that learned Magistrate has committed a wrong in summoning the accused persons on extraneous evidence without following the procedure as envisaged in chapter XV of Cr. P.C. Though reference of oral evidence of prosecution witnesses is given but no any such witnesses were ever examined and protest petition was never treated as complaint. Hence setting aside the impugned order, protest petition deserves to be decided afresh, consequently revision succeeds.

Accordingly, revision is allowed. Setting aside the impugned order dated 4.3.2015, the matter is remitted back to the learned Magistrate for deciding the protest petition afresh in the light of the observations, made in this revision.

Order Date :- 07.8.2015

M.A.Ansari