Allahabad High Court
Sita Ram Son Of Shri Bhajan Lal And Ors. vs The State Of U.P. And Rajendra Bhushan ... on 13 January, 2006
Equivalent citations: 2006CRILJ1433
Author: Ravindra Singh
Bench: Ravindra Singh
JUDGMENT Ravindra Singh, J.
1. This revision is preferred by the revisionists Sita Ram, Puttu Singh, Shiv Dutta, Vishnu Datta, Jagat Narain, Udit Narain, Babboo and Bhwani Deen against the judgment and order dated 7.4.1988 passed by 4th Additional Sessions Judge, Hamirpur in Criminal Revision No. 54 of 1987 whereby the revision was allowed and set aside the order dated 30.3.1987 passed by the learned C.J.M. Hamirpur in Criminal case no. 232 of 1987 arising out of case crime no. 213-A of 1986, under Section 147, 148, 149, 307 I.P.C., P.S. Biwar, district Hamirpur and the matter was remitted to the court of learned C.J.M. to pass a fresh order after affording opportunity of being heard to the complainant.
2. Heard Sri V.S. Singh learned Counsel for the revisionists and the learned A.G.A.
3. From the perusal of the record it appears that the F.I.R. was lodged by the opposite party no. 2 in case crime no. 213-A of 1986 against the revisionists under Sections 147, 148, 149 and 307 I.P.C., P.S. Biwar, district Hamirpur. The matter was investigated, the I.O. came to the conclusion that the revisionists were falsely implicated, therefore, the final report was submitted in the court of learned C.J.M. Hamirpur. A notice was issued to the opposite party no. 2, who submitted protest petition and the affidavits were filed by the witnesses Naval Kishor and Ram Kishore. After perusing the case diary the learned Magistrate rejected the protest petition filed by the opposite party no. 2 and accepted the final report on 30.3.1987. Against the order dated 30.3.1987 the opposite party no. 2 filed Criminal Revision No. 54 of 1987. The same was allowed on 17.4.1988 and the order dated 30.3.1987 was set aside and the matter was remitted to the court of learned Magistrate with a direction to pass a fresh order after affording opportunity of being heard to the opposite party no. 2 in accordance with the provisions of law and both the parties were directed to appear before the court of learned C.J.M., Hamirpur.
4. Against the impugned order dated 7.4.1988 the present revision has been filed by the revisionists.
5. It is contended by the learned Counsel for the revisionists that the order dated 30.3.1987 passed by the learned C.J.M. was not illegal because after considering the material collected by the I.O. during investigation which was available in the case diary and after applying judicial mind the learned C.J.M., Hamirpur accepted final report and rejected protest petition. Even according to facts and circumstances of the case there was no cross version of the alleged occurrence but for another incident a crime no. 213-A of 1986 was marked at the police station. The learned C.J.M. has accepted the final report, after considering the facts and circumstances of this case and passed a well reasoned order. It is further contended that the impugned order dated 7.4.1988 passed by learned 4th Additional Sessions Judge, Hamirpur is illegal. The learned 4th Additional Sessions Judge has not applied his judicial mind and set aside the order dated 30.3.1987 and without any reason the matter was remitted to the court of learned C.J.M. to pass a fresh order after affording opportunity of being heard to the complainant. In fact, there was no need to remit the matter for passing a fresh order.
6. It is opposed by the learned A.G.A. and learned Counsel for the opposite party no. 2 by submitting that the learned C.J.M. has passed illegal order dated 30.3.1987 because this order was passed only on the basis of conjecture and surmises and without any proper reason he has accepted the final report and rejected the protest petition. The learned Magistrate has not discussed any evidence which has been collected by the I.O. during the investigation and there is no finding that on the basis of the material collected by the I.O. prima facie no offence is made out and the learned Magistrate has not dealt with any evidence collected by the I.O. The final report has been accepted only on the ground that the witnesses Ram Kishore and Naval Kishore who have filed their affidavits were the accused of crime no. 213 of 1986 and the witnesses Vijay Pal was also accused of that case. Only witness Subedar was independent witness who has not filed his affidavit. The statements of the witnesses were not properly recorded and deliberately the final report has been submitted, due to some other reasons. The learned C.J.M. has committed another manifest error by not treating the protest petition as a complaint. The learned 4th Additional Sessions Judge has committed no mistake by setting aside the order dated 30.3.1987 and remitting the matter for passing a fresh order after affording opportunity of being heard to complainant in accordance with the provisions of law. Therefore, this revision is liable to be dismissed.
7. Considering the facts and circumstances of the case and the submissions made by the learned Counsel for the revisionists, learned A.G.A. and the learned Counsel for the opposite party no. 2 and from the perusal of the impugned order, it appears that the learned C.J.M. had passed the order dated 30.3.1987 by which the final report was accepted and the protest petition was rejected. This order was not in accordance with the provisions of law, because it was specifically alleged in the protest petition that the statement of the witnesses were not recorded and the final report was submitted in a arbitrary manner. The learned Magistrate has not discussed any evidence collected by the I.O. during the investigation, even no reference of such evidence has been given, the learned Magistrate was under obligation to consider and discuss the evidence collected by the I.O. for passing the order on final report. If there was no evidence against the accused persons or prima facie no offence was made out against the accused persons, in such circumstances the learned Magistrate was under obligation to record such finding but no such findings has been recorded. The learned Magistrate has illegally accepted the final report only on the ground that three witnesses were accused in the cross case and only one witness was independent who has not filed his affidavit and the cross case was filed in pesbandi only to create a defence, because at this stage the scrutiny or assessment of the evidence collected by the I.O. cannot be done. It has to be seen only that on the basis of the material collected by the I.O. prima facie offence is made out or not and the material collected by the I.O. is sufficient to proceed further or not. The learned Magistrate has committed manifest error by accepting the final report. It is alleged that during the investigation no evidence was collected by the I.O. or it was not fairly recorded, in such circumstances it was proper to treat the protest petition as complaint but the learned Magistrate has not passed any such order also He has committed manifest error of law and passed illegal order by accepting final report, it was rightly set aside by the learned 4th Additional Sessions Judge, Hamirpur and the matter was remitted to the court of learned C.J.M. concerned to pass a fresh order in accordance with the provisions of law after affording opportunity of being heard to the first informant. There is no illegality in the impugned order dated 7.4.1988. It requires no interference by this Court. Therefore, the impugned order dated.7.4.1988 is affirmed.
8. In the result, the revision is dismissed.
9. Office is directed to communicate this order to the C.J.M. Hamirpur for passing a fresh appropriate order in pursuance of the order dated 7.4.1988 passed by the learned 4th Additional Sessions Judge, Hamirpur in Criminal Revision No. 54 of 1987.