VISHNU CHANDRA GUPTA, J. - (1.) BY means of this petition, under Section 482 of Cr.P.C., the petitioners have prayed for quashing the order dated 02.03.2015 passed by learned Additional Sessions Judge, Court No.1, Faizabad in Criminal Revision No.44 of 2014 (Ibrar Ahmad Vs. State of U.P. and others) setting aside the order dated 09.04.2014 passed by learned Additional Chief Judicial Magistrate, Court No.11, Faizabad on Final Report No.132 of 2013 arising out of Case Crime No.1142 -A of 2012, under Sections 147, 336, 506 IPC, Police Station Rudauli, District Faizabad.
(2.) BRIEF facts for deciding this petition are that opposite party no.2 Ibrar Ahmad lodged an FIR against the petitioners on 30.12.2012 at 12:45 P.M. at Case Crime No.1142 -A of 2012, under Sections 147, 336, 323, 506 IPC, Police Station Rudauli, District Faizabad with the allegation that the accused persons after forming an unlawful assembly on 30.12.2012 caused injuries to the opposite party no.2, his wife Smt. Wasirunisha, Ruksar and Afsana. The injured opposite party no.2 and Ruksar were medically examined on the basis of Chiththi Majroobi issued by the police. After completing the investigation, the Investigating Officer submitted final report. Learned Magistrate issued notice to the informant to file protest petition against the final report. The informant filed protest petition and after considering the protest petition, learned Magistrate vide order dated 09.04.2014 accepted the final report and declined to order for further investigation or to take cognizance. Aggrieved by the order dated 09.04.2014, the opposite party no.2 filed revision before learned Sessions Judge, Faizabad. Vide order dated 02.03.2015, learned Sessions Judge, Faizabad set aside the order of learned Magistrate dated 09.04.2014 and remanded the matter with a direction to the learned Magistrate to decide the protest petition afresh keeping in view the directions contained in the judgment. Aggrieved by the order dated 02.03.2015, the petitioners accused filed this petition before this Court.
(3.) IT has been contended by learned counsel for the petitioners that the revisional court acted beyond its jurisdiction and passed the impugned order dated 02.03.2015, whereby the revisional court gave directions to the learned Magistrate to pass fresh order keeping in view the directions contained in the judgment. It has further been contended that learned revisional court may at the most pass order either to dismiss the revision or to allow it and if, he is of the opinion that the order is not sustainable and the matter requires reconsideration, then he simply sent the matter for reconsideration to the Magistrate. From the perusal of the impugned order passed by revisional court, it reveals that the court considered the facts that injured Ibrar and Ruksar were medically examined on the basis of the report submitted by the police. The injured were accompanied with home guard Om Prakash Dubey for medical examination. The injury reports are on record and both the injured supported the prosecution story. The revisional court also considered the statements of independent witnesses, namely, Vishram Rawat, Mohd. Kalim, Asir Ahmad and Miraz. The alleged independent witnesses in their statements did not support the prosecution story and stated that the informant of this case assaulted the petitioners at their home. The revisional court after considering the fact that the incident took place in between the parties and there is a cross -version also and, therefore, the order passed by learned Magistrate is not sustainable in view of the judgment of the Apex Court in Uma Shanker Singh Vs. State of Bihar and others, 2010 9 SCC 479, judgments of the Allahabad High Court in Smt. Kalpana Tiwari Vs. State of U.P. and others, 2008 63 AllCriC 739 and Udai Veer and others Vs. State of U.P. and others, 2011 1 JIC 239 wherein it has been observed that if sufficient material is available in the case diary by which, prima facie, offence is made out, then cognizance may be taken under Section 190 (1)(b) of Cr.P.C. inspite of submitting final report by the police or treating the protest petition as complaint case by the Magistrate.;