RAEES AHMED Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. As prayed by learned Counsel for the petitioners, he is permitted to amend the prayer No. 1 as the order dated 30-11-2006 passed by learned C. J. M. , Hamirpur may also be quashed.

(2.) THIS petition has been filed by the petitioners Raees Ahmad, Vishnu Shivhare, Keshav Shivhare, Raj Narain Budholia, Ram Adhar Singh and Ghanshyam Anuragi with a prayer to quash the order dated 30- 11-2006 passed by learned Chief Judicial Magistrate, Hamirpur in case No. 50/12 of 2006 arising out of Case No. 9 of 2006 under Sections 147, 148, 149, 171 (Cha) and 365, IPC, P. S. Kotwali Hamirpur, District Hamirpur by which the final report has been rejected and protest petition filed by the O. P. No. 2 has been accepted and it was registered as complaint case, and the order dated 12-12-2006 passed by learned Chief Judicial Magistrate, Hamirpur whereby the learned Magistrate has taken the cognizance and summoned the petitioners to face the trial for the offences punishable under Sections 147, 148, 149, 171 (Cha) and 365, IPC and the order dated 9-5-2007 passed by learned Sessions Judge, Hamirpur in Crime Revision No. 5 of 2007 whereby the revision filed by the petitioners has been dismissed.

(3.) HEARD Sri G. S. Hajela and Sri Pankaj Shukla, learned Counsel for the petitioners, learned A. G. A. and Sri Jitendra Singh Lodhi, Counsel for the respondent No. 2. It is contended by learned Counsel for the petitioners that for considering the police report the learned C. J. M. , Hamirpur has adopted a unusual procedure by way of recording the statements of some witnesses as Court witnesses. Considering the same the final report was rejected and protest petition was accepted and it was treated as a complaint. Thereafter again the statements of the first informant and some witnesses were recorded under Sections 200 and 202, Crpc and considering the same the cognizance has been taken and the petitioners have been summoned to face the trial. For consideration of the police report (final report) the procedure is prescribed as it may be accepted or it can be rejected or a further investigation may be done, the fourth option is to treat the protest petition as a complaint but surprisingly in the present case the witnesses were called by learned Magistrate concerned and their statements were recorded as a Court witnesses which is not permissible under the law. Therefore, the order dated 30-11-2006 is illegal, consequent the order dated 12-12- 2006 by which the learned C. J. M. concerned has taken the cognizance and summoned the petitioners to face the trial after recording the statements under Section 202, Crpc is also illegal. The learned revisional Court has also not considered this manifest error committed by learned C. J. M. concerned and dismissed the revision on 9-5-2007 it is also illegal. Therefore, the above mentioned orders are liable to be quashed.