- (1.) M. K. Mittal, J. This writ petition has been received in this Court by nomination.
(2.) THE writ petition has been filed with the prayer to quash the impugned order dated 6th December, 2006 passed by the Incharge Sessions Judge, Allahabad in Criminal Revision No. 876 of 2006 whereby the revision has been dismissed in limine and order dated 10th October, 2006 passed by the Additional Chief Judicial Magistrate, Court No. 2, Allahabad in Criminal Case No. 99/xii of 2006 (Deepak Kumar Singh v. Dilip Agrahari and Ors.) [annexures-1 and 2], whereby the final report No. 36 of 2006 has been rejected and the protest petition dated 17-6-2006 filed by respondent No. 2 has been accepted and the accused have been directed to be summoned under Section 190 (1) (b) of Cr. P. C. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Roshan Khan for the petitioner, Sri G. S. Chaturvedi, learned Senior Advocate assisted by Sri Udai Chandani for respondent No. 2, learned A. G. A. and perused the material on record. Counter and rejoinder affidavits have been exchanged. The brief facts of the case are that Respondent No. 2 Deepak Kumar Singh filed an application under Section 156 (3) of Cr. P. C. on 15th December, 2005 alleging that the election of the Students Union, Allahabad University, had concluded on 24th November, 2005. Manoj Kumar Singh elder brother of Deepak Kumar Singh was a candidate for the President's post. On that day, in the night at about 8 p. m. respondent No. 2 and his supporters had collected at the room of Ajai Singh in Chhota Baghara and they had some programme for dinner etc. At that time Chandan Pandey, driver of the brother of respondent No. 2, Brijesh Singh and Santosh Singh were also present. The boys were making noise expecting the victory of their candidate. But at that time, Kamlesh Yadav with his supporter Dilip Agrahari and his uncle Surya Bhan and 8-10 persons came at the room and started pulling Deepak Kumar Singh saying as to why they were talking against them. They took Deepak outside and Dilip Agrahari struck a butt blow on his head. At that time Surya Bhan exhorted to shoot him and Kamlesh Yadav fired but the shot hit Chandan Pandey and he fell down. Kamlesh Yadav wanted to make a second fire but he could not do so as someone fired from his (Deepak Kumar Singh) side to save them and the shot hit Kamlesh Yadav. Surya Bhan also made fire but it missed. Thereafter, the injured were taken to the hospital. On the basis of this application, the learned Magistrate directed for registration of the case and after investigation the Investigating Officer submitted a final report. Against the final report respondent No. 2 filed a protest petition and alongwith that protest petition he also filed his affidavit as well as affidavits of his witnesses Brijesh Singh, Santosh Kumar, Chandan Pandey and Ajai Singh. The learned Magistrate after considering the case diary and affidavits allowed protest petition holding that the Investigating Officer had not correctly recorded the statements of the witnesses and had wrongly concluded that no incident had taken place. The learned Magistrate also held that the medical evidence on record proved that the incident took place. Consequently he rejected the final report and allowed the protest petition and directed to summon the accused under Section 190 (1) (b) of Cr. P. C. Against that order the applicant preferred Criminal Revision No. 879 of 2006 but the same has been dismissed in limine, hence this writ petition.
(3.) IT may be noted that a report was lodged by Shiv Bhan Singh Yadav on 24-11-2005 at 10. 30 p. m. regarding the incident that took place the same day at 9 p. m. and the case was registered as case crime No. 6237050358 of 2005 under Section 302, I. P. C. In this report Manoj Kumar Singh, Deepak Kumar Singh (Respondent No. 2) and Chandan Pandey have been named as accused persons and it has been alleged that after conclusion of the students union election, the informant Shiv Bhan Singh Yadav alongwith nephew Kamlesh Kumar Singh Yadav who was candidate for the post of General Secretary had hardly reached near the house of Dilip Kumar Agrahari, a friend on motorcycle, the accused persons came in a black Safari vehicle which was being driven by Chandan Pandey. They abused Kamlesh Kumar Singh Yadav and Manoj Kumar Singh fired at the right temple of Kamlesh Kumar Singh Yadav from point blank range. He was injured and fell down. The accused also made several fires in air and one of them hit Chandan Pandey. Kamlesh Kumar Singh Yadav was taken to hospital, but the doctors present there, declared him dead. Learned Counsel for the petitioner has contended that the learned Magistrate has not properly exercised jurisdiction vested in him while summoning the accused under Section 190 (1) (b) of Cr. P. C. and has committed mistake regarding procedure itself. According to the learned Counsel for the petitioner, the Investigating Officer has statutory duty to investigate on the basis of report and after collecting evidence he can submit charge-sheet or can give a final report in the matter. Although, he has further contended that the Magistrate is not bound by the opinion of the Investigating Officer and can form his own independent opinion but only on the basis of materials collected by the Investigating Officer, the Magistrate can either accept the final report or reject the same and take cognizance of the offence under Section 190 (1) (b ). But if there is any extraneous matter, then the Magistrate can take cognizance under Section 190 (1) (a) of Cr. P. C. and can proceed under Sections 200 and 202 of Cr. P. C. or can direct the Investigating Officer for further investigation under Section 173 (8) of Cr. P. C. According to him, in this case the Investigating Officer submitted final report and against that respondent No. 2 filed a protest petition with affidavits which was extraneous matter and, therefore, the learned Magistrate could not have summoned the accused under Section 190 (1) (b) of Cr. P. C.;