- (1.) R. K. Rastogi, J. This is an application under Section 482, Cr. P. C. to quash the order dated 30. 4. 2004 passed by the Judicial Magistrate, Mathura in complaint case No. 105 of 2003, Ramesh v. Dibban and others, and the order dated 28. 10. 2004 passed by the Addl. District and Sessions Judge, Court No. 1, Mathura in Criminal Revision No. 360/04, Ramesh v. State.
(2.) THE facts relevant for disposal of this application are that the applicant had moved an application the S. S. P. Mathura on 11. 2. 2001 with these allegations that he was resident of village Semra police station Shergarh district Mathura and on the above date at about 9 A. M. complainant's real brother Mukesh and cousin brothers Pramod and Mahesh had gone to Shyam Kund to take bath. THE accused Dibban, Prem Chandra, Hukam, Sunil, Raju, Dalchand and Chetram, who had pistols, guns and lathies with them assaulted Pramod, Mukesh and Mahesh. THE accused abused them and stated that they would not spare Pramod, Mukesh and Mahesh and on exhortation of Hukam, Sunil, Chetram, Dibban and Raju fired at them with an intent to kill them. THE fire done by Sunil hit Mukesh, that done by Chetram hit Pramod but fires done by Raju and Prem Chand did not hit any one. Dal Chand gave a lathi blow to Mahesh. Upon noise Shiv Ji, Durga, Bhajan Lal, Vinod etc. of the same village reached there, who witnessed the incident and protected Pramod, Mukesh and Mahesh. THE accused persons went away towards jungle threatening to kill them. Ramesh was taking the injured to the police station but the accused had obstructed the way. THEn lie took them to Methodist Hospital at Mathura where their treatment was going on. It was, there fore prayed that action should be taken and the Station Officer of the police station should be directed to register a case against the accused persons. On the basis of the order passed by the S. S. P. Mathura on this application, a case was registered against the accused persons at police station Shergarh as case crime No. 14a/2001 under Sections 147, 148, 149, 307, 323, 504 and 506, I. P. C. and it was investigated. According to the injury report of Pramod Kumar he had a fire arm injury on his chest and left shoulder. Mahesh had head injury. Mukesh had gun shot injury on his chest. The police, however, after investigation submitted a final report in the case and against that final report, complainant filed protest petition. On that protest petition Sri S. N. Saroj, Judicial Magistrate, Mathura passed an order on 28. 10. 2003 for treating it as complaint and he fixed a date for recording statements of the complainant and his witnesses under sections 200 and 202, Cr. P. C. Accordingly the statements of the complainant and his witnesses were recorded. Thereafter the case was fixed for order. On 30. 4. 2004 Sri Amarnath Kushwaha, who was at that time posted as Judicial magistrate, Mathura passed an order for accepting final report and rejecting the protest petition. He further observed in his order that his predecessor had passed an erroneous order for registering the protest petition as a complaint because the protest petition did not contain full particulars of the incident and it did not come within the definition of the word "complaint". Aggrieved with that order Ramesh filed criminal revision No. 360 of 2004 the Sessions Judge, Mathura, which was dismissed by Sri A. K. Mathur, Addl. Sessions Judge, Court No. 1, Mathura vide his order dated 28. 10. 2004. Aggrieved with both these orders the complainant has filed this application under Section 482, Cr. P. C.
(3.) I have heard learned Counsel for the applicant as well as the learned A. G A. for the State, The learned Counsel for the applicant cited me a Division Bench ruling of this Court in 'pakhando and others v. State of U. P. and another, 2001 (43) ACC 1096, in which it has been held that after filing of the final report by the police, the Magistrate has got jurisdiction to treat the protest petition as a complaint. He further submitted that, in this way, the view taken by the Magistrate and the Addl. Sessions Judge that protest petition could not be treated as a complaint is erroneous. As regards the contention of the learned Magistrate that the protest petition did not contain particulars of the incident, the learned Counsel for the applicant referred to para 1 of the protest petition (Annexure 5 to the affidavit filed in support of the application under Section 482, Cr. P. C.) in which complete description of the, entire incident has been given in brief and so the observation of the Magistrate is erroneous that the protest petition did not contain description of the incident. If gives Complete description of the incident as well as the names of witnesses.;