Allahabad High Court
Ashok Chawla & Another vs State Of U.P. & Another on 9 November, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- CRIMINAL REVISION No. - 1300 of 2004
Revisionist :- Ashok Chawla & Another
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- B.N. Rai,Adarsh Kumar
Counsel for Opposite Party :- Govt. Advocate,A.K.Verma,K.K.Tripathi,R.K. Mishra,S.K. Gupta,S.R.Verma
Hon'ble Siddhartha Varma,J.
The present revision has been filed against the order dated 30.8.2003 by which the applicants have been summoned.
After a First Information Report was lodged on 7.9.2002 under Sections 498 A,323, 504 and 506 IPC and ¾ Dowry Prohibition Act, the police investigated into the matter and submitted its final report. However, when notices were issued to the first informant, she filed a protest petition alongwith an affidavit on 21.3.2003. She also gave her statement and implicated every possible individual on her in-laws side. The Magistrate, however, on the basis of the First Information Report and the affidavit as had been filed by the first informant took congnizance of the matter under Section 190 (1)(a) Cr.P.C. and summoned the applicants for the framing of charges under Sections 498-A, 323, 504, 506 and ¾ D.P. Act. Of course, he rejected the final report dated 27.10.2002 with regard to the applicants. The first informant had also filed a complaint which was numbered as Complaint No. 5577 of 2003 and was connected alongwith the record of the case no. 239 of 2003.
Learned counsel for the applicants submitted that respondent no. 2 had on 27.11.2002 entered into a compromise with the applicants wherein she had accepted Rs. 85,000/- by way of Demand Draft and had agreed that she would withdraw all criminal cases. Subsequently, she had also filed a joint divorce petition alongwith the applicant no. 1 on 30.11.2002. He states that after looking into the compromise, the final report was submitted by the Police on 27.10.2002 and has, relying on decisions reported in 2005 (3) SCC 302 (Mohd. Shamim and Others Versus Nahid Begum (Smt) and Another) and 2005 (3) SCC 299 (Ruchi Agarwal Versus Amit Kumar Agrawal and Others), stated that once parties had entered into a compromise they could not resile from it. He further stated that on 30.8.2003, the Metropolitan Magistrate Kanpur Nagar could not have treated the case as a complaint case on the basis of the statements and the affidavits of the first informant alone. To emphazise his submissions, the learned counsel has relied upon a decision of this Court dated 6.5.2016 passed in Durgadas @ Durga Prasad in Criminal Revision No. 3372 of 2004 and stated that an affidavit would not amount to a statement recorded under Section 200 Cr.P.C. and 202 Cr.P.C. and has specifically referred to the paragraph no. 28 of the above mentioned judgement which is being reproduced here as under:-
"Looking to exposition of law, discussed above, I find that in the present case, learned Special Judge (D.A.A.), Agra rejected final report on the basis of facts stated in protest petition, and relying on affidavits and injury reports filed before him along with protest petition, has proceeded to issue non-bailable warrant against accused revisionists. Affidavits would not amount to a statement recorded by Special Judge (D.A.A.), Agra under section 200 and 202 Cr.P.C. Special Judge (D.A.A.), Agra has not given any reason for rejecting Police report and nothing has been said in this regard, except that in the light of affidavits placed before him along with Protest Petition, he finds that final report is liable to be rejected and accused should be summoned. This approach on the part of Special Judge (D.A.A.), Agra, I find contrary to what has been laid down in the above authorities and same can not be sustained."
He further, relying on this very decision, stated that the learned Magistrate had not given any reason for rejecting the police report. He has stated that the police report definitely must have taken into account the compromise which was entered into between the parties and the protest petition was silent with regard to the compromise.
I have heard the learned counsel for the parties and conclude that the order dated 30.8.2003 could not have been passed.
A bare perusal of the order shows that the Magistrate had rejected the final report on the basis of the fact mentioned in the protest petition and had relied on certain statements of the first informant and the affidavits she had filed. The affidavits would not amount to statements being recorded by the magistrate under Section 200 Cr.P.C. and 202 Cr.P.C. Further, I find that in the impugned order no reason has been recorded for rejecting the police report. Nothing has been stated in this regard excepting that in the light of the affidavits placed before the Presiding Officer he had rejected the final report. Reason is the heartbeat of any order and this is what has been stated in 2003 (11) SCC 519 : (Raj Kishore Jha Vs. State of Bihar and Others).
Under such circumstances, the revision is allowed. The impugned order dated 30.8.2003 is set aside. The metropolitan Magistrate shall pass fresh orders in accordance with law.
Order Date :- 9.11.2017
praveen.
