Allahabad High Court
Deepak Kesarwani vs State Of U.P.And Another on 15 June, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- APPLICATION U/S 482 No. - 6264 of 2022 Applicant :- Deepak Kesarwani Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Pankaj Kumar Gupta Counsel for Opposite Party :- G.A.,Rahul Mishra,Samarth Sinha,Shalini Mishra Hon'ble Samit Gopal,J.
1. Heard Sri Pankaj Kumar Gupta, learned counsel for the applicant, Sri Samarth Sinha, learned counsel for the Opposite Party No.2 and Sri Ankit Srivastava, learned counsel for the State and perused the records.
2. The present application has been filed under Section 482 Cr.P.C. with the following prayers:-
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow the application and set-aside the impugned order dated 7.1.222 passed by the learned Chief Judicial Magistrate, Allahabad in Protest Application No. 313 of 2020, Jay Prakash Pandey Vs. Deepak Kesarwani & others) arising out of Case Crime No. 578 of 2020, under Sections 147, 323,427, 504 & 506 I.P.C., Police Station- Civil Lines, District Prayagraj.
It is, further prayed that this Hon'ble Court may very graciously be pleased to stay the effect and operation of the impugned order dated 7.1.22 passed by learned Chief Judicial Magistrate, Allahabad in Protest Application No. 313 of 2020, Jay Prakash Pandey Vs. Deepak Kesarwani & others) arising out of Case Crime No. 578 of 2020, under Sections 147, 323,427, 504 & 506 I.P.C., Police Station- Civil Lines, District Prayagraj (Annexure No.4 to this application) during the pendency of present criminal misc. application before this Hon'ble Court.
And / or grant such other or further relief which this Hon'ble Court may deem fit and proper under facts and circumstances of the case, otherwise the applicant shall suffer irreparable loss and injury."
3. The facts arising out in the matter are that a first information report was lodged on 12.10.2020 by Jay Prakash Pandey as Case Crime No. 0578 of 2020, under Sections 147, 323, 504, 506, 427 I.P.C., Police Station Civil Lines, District Prayagraj against the applicant, Dinesh Kumar Dhuriya, Divyansh Kesarwani, Dheeraj Kesarwani and Chandan. The matter came to be investigated and a Final Report No. 145 of 2020 dated 05.11.2020 was submitted in favour of the accused persons stating therein that except for accused Deepak Kesarwani no other accused person was found to be near the place of occurrence as per the CDR and further in the X-Ray report no bony injury was found. During investigation, it was revealed that the first informant without giving rent in a forcible manner was running a coaching in the property of Deepak Kumar and on asking for rent, the present first information report has been lodged. He wants to forcibly take the property on rent but the accused persons wanted to oust him from the property. There is no agreement or receipt of rent but still he has forcibly put his lock in it. He is an Advocate by profession. The case is not a fit case for being put up for trial and as such a final report is being filed. On the final report, a protest petition dated 16.12.2021 was filed by the first informant Jay Prakash Pandey with a prayer that the same be set-aside and on the basis of the medical report, further report and the material available on record, the accused persons be summoned by exercising powers under Section 190(1)(b) Cr.P.C. In support of the protest petition, an affidavit dated 16.12.2021 of the first informant Jay Prakash Pandey, Prateek Shukla and Gaurav Sonkar, an enquiry report addressed to the I.G. / S.S.P., Prayagraj dated 11.01.2021 of the Assistant Superintendent of Police / Circle Officer, Lines, Prayagraj has been filed. The same are annexed as Annexure-3 to the affidavit. The Court concerned vide order dated 07.01.2022, the copy of which is annexed as Annexure-4 to the affidavit rejected the Final Report No. 145 of 2020 dated 05.11.2020. A direction was issued to the Inspector, Police Station Civil Lines that further investigation be done in the light of the observations of the enquiry officer.
4. Learned counsel for the applicant argued that the order dated 07.01.2022 is an illegal order which has been passed in a wholly illegal and arbitrary manner without taking into consideration the provisions of Cr.P.C. and the law laid down by the Apex Court. It is argued that the Magistrate has taken cognizance upon the matter on extraneous material like affidavit and enquiry report annexed with the protest petition under Section 190(1)(b) Cr.P.C. It is argued that cognizance under under Section 190(1)(b) Cr.P.C. can only be taken on the basis of final report without considering any extraneous material. It is argued that only option available to the Magistrate was to treat the protest petition as a complaint and proceed with the matter as per Chapter XV of Cr.P.C. It is argued that as such the order impugned be set-aside and the prayer as prayed be allowed.
5. Per contra, learned counsel for the Opposite Party No.2 and learned counsel for the State have opposed the petition and argued that the Magistrate was well within his rights to direct further investigation in the matter on the protest petition. It is argued that the Magistrate after receiving a protest petition has four options before him only being that he may agree with the conclusion arrived at by the police, accept the final report and drop the proceedings, before doing so he shall give an opportunity of hearing to the complainant, the other is that he may take cognizance under Section 190(1)(b) Cr.P.C. and issue process to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police there is sufficient ground to proceed, the next is that he may order further investigation if he is satisfied that the investigation was made in a perfunctory manner and lastly, he may without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) Cr.P.C. upon the complaint or protest petition treating the same as a complaint and proceed under Sections 200, 202 Cr.P.C. and thereafter decide whether the complaint should be dismissed or process should be issued. It is argued that the Magistrate has resorted to one of the course available to him by ordering further investigation being dissatisfied with the investigation. It is further argued that it is not a case where the Magistrate has taken cognizance under Section 190(1)(b) Cr.P.C. and has summoned the accused and proceeded with the matter. The final report was rejected and the matter has been sent for further investigation. It is argued that there is no irregularity or illegality in the same. The present petition thus be dismissed.
6. After having heard the learned counsel for the parties and perusing the record, it is evident that after lodging of the first information report a final report was submitted against which a protest petition was filed. The Magistrate has referred the matter for further investigation but has directed that the matter be investigated further in the light of the enquiry report of the enquiry officer. The direction as issued by the Magistrate for investigating only on a fixed compass was not called for.
7. The direction issued by the Magistrate restricting the police to investigate the matter only on the points as stated in the report of the enquiry officer is set-aside. The matter shall be further investigated as ordered but not restricted only to the same.
8. The present application under Section 482 Cr.P.C. is partly allowed.
Order Date :- 15.6.2022 AS Rathore (Samit Gopal,J.)