Allahabad High Court
Babloo vs State Of U.P. And Another on 20 October, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 26.09.2022
Judgment delivered on 20.10.2022
Court No. - 84
Case :- APPLICATION U/S 482 No. - 4195 of 2007
Applicant :- Babloo
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Amit Daga
Counsel for Opposite Party :- Government Advocate
Hon'ble Saurabh Shyam Shamshery,J.
1. The facts of the present case are that F.I.R. was lodged by opposite party No.2 alleging that applicant and other two co-accused have committed offence under Sections 323, 504, 506 I.P.C. and 3(1)(x) of SC/ST Act. During investigation, statements of complainant, his wife and independent witnesses were recorded, however, the I.O. came to a conclusion that no case was made out on the basis of investigation and thereafter a final report was submitted on 27.08.1997. Thereafter, on the request of complainant, further investigation was conducted wherein further statement of complainant was also recorded, however, the outcome remained same i.e. no case was made out against the applicant and others.
2. The learned Magistrate by the impugned order dated 30.11.1998 disapproved the final report and took cognizance of the offence and issued summons by order dated 30.11.1998 against the applicant and two others on the ground that the prosecution case was supported by the complainant, his wife Smt. Mohini Devi and witnesses, viz., Subhash and Prem by their statement recorded under Section 161 Cr.P.C.
3. The other co-accused Jaipal had also filed an application under Section 482 Cr.P.C. No. 760 of 2007 wherein stay was granted on 18.01.2007, however, on 20.10.2020 it was dismissed as none appeared for the applicant therein though it was filed by same advocate who has filed present application but this fact was not disclosed during the arguments.
4. Sri Shravan Kumar Yadav holding brief of Sri Amit Daga fairly submitted that there was no irregularity in rejecting the outcome of final report and to take cognizance on the basis of material on record under Section 191 (B) of Cr.P.C. However, he further submitted that reasons given by the learned Magistrate in the impugned order are perverse so much as that the independent witness viz., Subhash and Prem have not supported the prosecution case. However, contrary stand was taken in the impugned order that they were supported the complainant's version.
5. Learned A.G.A. Sri Deepak Kapoor has supported the impugned order.
6. The Magistrate can take cognizance by disapproving the outcome of final report on the basis of material available if a case is made out against the accused persons, however, considering that the Magistrate is taking a contradictory view to the outcome of final report. Therefore, he is under obligation to pass a reasoned order so much as that a prima facie case is made out against the applicants though reasons thereof may be in brief.
7. I have perused record and found that finding given in the impugned order that independent witnesses, viz. Subhash and Prem have supported the complainant's case are contrary to the record. These witnesses in their statements recorded during investigation said that no such occurrence took place. There was some exchange of hot words between complainant and accused. Wife of complainant was not present. Therefore, it is a perverse finding.
8. To take cognizance of an offence and to summon an accused is a serious matter and it become more important when a police report is disapproved and thereafter cognizance was taken and for that a Magistrate has to make an opinion that there are material to support that offence was committed. However, as referred above, Magistrate has misread the statement of witnesses and, therefore, error has been committed. Accordingly, in under inherent jurisdiction, cognizance order dated 30.11.1998 and further proceedings of Criminal Case No. 348/9 of 2006 (State of U.P. vs. Anil and others), under Sections 323, 504, 506 IPC and 3(1)(10) SC/St Act, Police Station Bhopa, District Muzaffarnagar, are hereby quashed.
9. The application stands allowed.
Order Date :- October 20, 2022
Nirmal Sinha/AK
