Allahabad High Court
Furkan And 10 Others vs State Of U.P. And Another on 20 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- MATTERS UNDER ARTICLE 227 No. - 1673 of 2023 Petitioner :- Furkan And 10 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Dharmendra Pratap Singh Counsel for Respondent :- G.A.,Asheesh Kumar Tiwari Hon'ble Rajeev Misra,J.
Heard Mr. Dharmendra Pratap Singh, the learned counsel for petitioner, the learned A.G.A. for state and Mr. Mohd. Monis, Advocate, holding brief of Mr. Ashish Tiwari, the learned counsel representing first informant respondent 2.
This petition under Article 227 of the Constitution of India has been filed challenging the order dated 01.07.2022 passed by Judicial Magistrate, Court No. 2, Muzaffarnagar in Criminal Case No. NIL of 2022 arising out of Final Report No. 1/12 of 2019 submitted in Case Crime No. 777 of 2015 under Sections 147, 148, 149, 452, 307, 427, 392 and 504 IPC, Police Station ? Bhopa, District Muzaffarnagar as well as the order dated 04.02.2023 passed by Additional Sessions Judge, Court No. 3, Muzaffarnagar in Criminal Revision No. 172 of 2022 (Furkan and others VS. State of U.P. and another), whereby aforementioned Criminal Revision arising out of order dated 01.07.2022 has been dismissed.
Record shows that after completion of investigation of Case Crime No. 777 of 2015 under Sections 147, 148, 149, 452, 307, 427, 392 and 504 IPC, investigating officer submitted a police report dated 17.02.2016 (Final Report) in terms of Section 173 (2) Cr.P.C. After submission of aforementioned police report, first informant respondent 2 filed a protest petition. Concerned Magistrate allowed the protest petition and directed the investigating officer to conduct further investigation vide order dated 18.03.2019.
Subsequent to above order, investigating officer made further investigation and again submitted a police report (final report) dated 24.6.2019 u/s 173 (2) Cr.P.C. A protest petition was again filed against aforesaid police report by first informant respondent 2. The protest petition so filed came to be allowed by concerned magistrate vide order dated 1.7.2022. The protest petition was allowed without rejecting the police report (final report). It was further directed that the consequential case shall proceed as a State case.
Feeling aggrieved by the order dated 1.7.2022 referred to above, applicant filed a Criminal Revision before the Sessions Judge, Muzaffarnagar which was registered as Criminal Revision No. 172 of 2022 . Above mention criminal revision came to be dismissed vide order dated 4.2.2023 passed by Additional Sessions Judge, Court No. 3, Muzaffarnagar.
Thus, feeling aggrieved by above order dated 1.7.2022 and 4.2.2023, petitioners have approached this court by means of present petition under Article 227 of the Constitution of India.
At the very outset, the learned counsel for petitioners invited the attention of the court to the order dated 1.7.2022 passed by Judicial Magistrate, Court No. 1, Muzaffarnagar. With reference to above, he submits that concerned magistrate has taken cognizance in exercise of jurisdiction u/s 190 (1) (b) Cr.P.C. without disapproving the police report. He therefore submitted that the aforesaid irregularity has vitiated the order dated 1.7.2022. To buttress his submission, he has invited the attention of the court to the Judgment of Supreme Court in Vishnu Kumar Tiwari vs The State Of Uttar Pradesh (2019) 8 SCC 27.
Per contra, the learned A.G.A. and Mr. Mohd. Monis, the learned counsel representing first informant respondent 2 have approached this court by means of present petition. However, they could not dislodge the legal position urged by the learned counsel for the petitioner.
Having heard the learned counsel for petitioner, the learned A.G.A. for state, Mr. Mohd. Monis, the learned counsel representing first informant respondent 2 and upon perusal of record, this court finds that Judicial Magistrate, Court No. 1, Muzaffarnagar proceeded to consider the police report dated 24.06.2019 submitted by the Investigating Officer under Section 173 (2) Cr.P.C. as well as the protest petition dated 18.03.2019 filed by first informant opposite party 2.
In view of the material, it is covered by the concerned magistrate on the record, he came to the conclusion that prima facie offence/complaint is made out. He accordingly allowed the protest petition but erred in not disapproving the police report.
The fact of the aforesaid is that no orders have been passed on behalf of police report regarding its status till date. In this regard, reference has been made to the judgment of this Court in Dabeer And 9 Others vs State Of U.P. And Another in Criminal Misc. Application No. 14899 of 2022 decided on 22.07.2022.
In view of above, the present succeeds and is allowed. The impugned order dated 1.7.2022 passed by Judicial Magistrate, Court No. 1, Muzaffarnagar (annexure 2 to the petition) and the order dated 04.02.2023 passed by Additional Sessions Judge, Court No. 3, Muzaffarnagar in Criminal Revision No. 172 of 2022 are hereby quashed. Concerned magistrate shall pass a fresh order within a month from the date of production of certified copy of this order.
This petition is accordingly allowed.
Order Date :- 20.4.2023 Aiman