- (1.) HEARD Sri Devendra Dahma, learned counsel for the revisionist and learned A.G.A. for the State. None present for the opposite parties no.2 to 5.
(2.) THIS criminal revision has been preferred by the first informant Hanuman Prasad Mishra against the order dated 15.3.2005 passed by Special Chief Judicial Magistrate, Varanasi in Misc. Case No.78 of 2005 (Hanuman Prasad Mishra Vs. Om Prakash and others), rejecting his protest petition against the final report dated 1.10.2004.
(3.) THE brief facts related to the case are that the revisionist moved an application under Section 156(3) Cr.P.C. for registering and investigating the case against the opposite parties no.2 to 5 for the occurrence dated 25.5.2005 in which he sustained multiple injuries at the hands of opposite parties no.2 to 5 and his medical examination was conducted at S.S.P.G. Hospital, Varanasi, the same day at 10:00 p.m. By order of the court, Case Crime No.C -8 of 2004 was registered and after investigation a charge -sheet was filed on 24.8.2004 against the opposite parties no.2 to 5, under Sections 323 and 504 I.P.C. and the magistrate taken cognizance on 15.9.2004. Thereafter an application was moved on 16.9.2004 by Head Constable Shamsher Bahadur Singh to the A.C.J.M. concerned for reinvestigation in the matter which was allowed by the magistrate on the same day. On 18.9.2004 the first informant moved an application for recalling the order of return of charge -sheet from the court for reinvestigation, suspecting possibility of changes in the charge -sheet and for summoning back the charge -sheet by the Court. Thereafter on 1.10.2004 the final report was submitted in the matter against which the first informant filed protest petition on 17.11.2004 which was rejected by the magistrate vide impugned order dated 15.3.2005. Learned counsel for the revisionist argued that in the above noted case after investigation, charge -sheet had been submitted and cognizance had been taken by the magistrate and in the circumstances after taking cognizance by the magistrate, the case diary and charge -sheet may not be sent for re -examination as the law provides only further investigation and re -investigation is not permissible under the law; that after taking cognizance by the magistrate, the permission for re -investigation has wrongly and illegally been given by the magistrate and despite application of the first informant on 18.9.2004 no action was taken consequent to which the Investigating Officer submitted final report in collusion with the accused persons; that it is proved from the material on record that after investigation the charge -sheet was submitted by the Investigating Officer Zamil Khan and there was no reason for reinvestigation in the matter and submission of final report by another Investigating Officer is wrong and illegal; that learned magistrate did not consider the material on record which was sufficient to proceed against the respondents and for taking cognizance under Sections 323 and 504 I.P.C. as had already been taken; that learned magistrate acted wrongly in holding that since the order of reinvestigation has not been challenged by filing revision, the protest petition cannot be allowed; that the above order was not required to be challenged by the first informant and for not challenging the same the final report may not be accepted; that there could have been no justification for reinvestigation by the other Investigating Officer after filing of charge -sheet by former; that relying on H.S. Bains Vs. The State (Union Territory of Chandigarh), 1980 AIR(SC) 1883, he argued that on receipt of final report, the magistrate has three options viz. (i) he may decide that there is no sufficient ground for proceeding further and drop action, (ii) he may take cognizance of offence under Section 190(1)(b) Cr.P.C. on the basis of police report and issue process, which he may do without being bound in any manner by the conclusion arrived at by the police in their report or (iii) he may take cognizance of the offence under Section 190(1)(a) Cr.P.C. on the basis of original complaint and proceed to examine upon oath the complainant and his witnesses under Sections 200 and 202 Cr.P.C. thereafter he may dismiss the complaint or issue process as the case may be.;