YOGENDRA KUMAR SANGAL, J. - (1.) HEARD learned counsel for the applicant, learned counsel for the opposite party no. 2, learned AGA for the State and perused the record. This is an application under Section 482 Cr.P.C. with the prayer to quash the order dated 09.12.2009 passed by Additional Chief Judaical Magistrate, Hathras in Case No. 1448 of 2009 (Anil Bahadu vs. Laxmi Narayan Updahyay under sections 323, 325, 342, 452, 504 & 506 IPC, Police Station Hathras Gate, district Mahamayanagar pending in the court of A.C.J.M, Hathras.
(2.) AS per prosecution case, a report was lodged at the police station on 12.06.2009 by the respondent No. 2 with the averments that applicant Laxmi Narayan who is a practising Advocate in the court pressed him to sell his house for Rs. 40, 000/- for which he was not agreed. On 06.06.2007 at about 8:00 A.M. Laxmi Narayan and his Brother-in-Law (Sala) Tinkal etc. came at the house of the informant. They were having Ballam, Phawada etc. in their hand entered into the house and pressed them for executing a Sale-deed in their favour and on their hue and cry people assembled there. Accused persons confined his children inside the room and closed the door of the house from outside. Electric connection was also disconnected. On telephonic call, on receiving information he informed his Presiding Officer of the Court, after his due permission, came to his house. Four persons from his family received injuries in the occurrence. On his report a case was registered against the accused persons. As earlier to this case another case regarding the occurrence was also registered at the same Police Station at Crime No. 561 of 2009 on the FIR of Tinkal against Amit etc. for the offense under Sections 147, 452, 329, 504, 506 and 352 IPC so crime number of this case was allotted 561-A of 2009. Record shows that after investigation in the matter Crime No. 561-A of 2009, Police has submitted final report. A Protest Petition was filed by the respondent no. 2 against this final report. After hearing in the matter, learned Magistrate found that from the facts given in the FIR and evidence collected by the I.O. during the investigation and also perusal of the injury report of the victims of the case, prima-facie case is made out against the accused persons and both the accused were summoned to face trial for the offence under Sections 323, 327, 342, 504 and 506 IPC. Aggrieved by this order, this petition under Section 482 Cr.P.C. has been filed. It is undisputed fact that earlier to the report of the respondent no. 2 another report at Crime No. 561 of 2009 was also registered at the police station and after completing investigation, Police of the P.S. concerned had submitted charge-sheet against the accused persons for the offence under Sections 147, 452, 504, 506 and 352 I.P.C. Learned counsel for the applicant argued that FIR of the present case against them was lodged only as counter-blast of the FIR already registered at Police Station against the sons of the respondent no. 2. In case Crime No. 561 of 2009 Tinkal received grievous injury as reported by Doctor (Annexure-1). On their report after investigation, charge-sheet was submitted against the accused persons of that case after recording statement of witnesses which is Annexure 4 of the application. FIR lodged against the applicants is false, fabricated and having concocted allegations. Only simple injuries were found on the body of the victim by the Doctor and statement recorded by the I.O. of Amit etc. under Section 161 Cr.P.C. was disbelieved by the Investigating Officer and Investigating Officer found that a report was lodged as counter-blast with malicious and nefarious intention so he submitted final report in the matter. Learned Magistrate without going into the material on record, without application of judicial mind recorded finding and summoned the applicant. Applicant No.1 Laxmi Narayan Upadhyay is a senior practising Advocate in the court Hathras and he is a law abiding citizen and no such offence was committed.
(3.) LEARNED Magistrate after perusing the record of final report case and also seeing the injury report of the injured of the case and also considering the nature of injuries received by the victims of the case with giving detailed reason after rejecting the final report, ordered for summoning the accused persons for their trial in the matter. In passing the impugned order, learned Magistrate seen the cross-case file which is clear from the order. Learned counsel for the applicant argued that it is established law that in Protest Petition case if some extraneous matter evidence or documents are considered by the learned Magistrate for summoning the accused persons this order could not be held legal, valid and proper. Learned Magistrate should have adopted the procedure of complaint case in such matter.;