- (1.) RAVINDRA Singh, J. Heard Sri A. B. L. Gaur, Senior Counsel assisted by Sri Hitesh Pachori, learned Counsel for the applicants, learned A. G. A. and Sri K. K. Dwivedi, learned Counsel for O. P. No. 2.
(2.) LEARNED A. G. A. , Counsel for the applicants, and Sri K. K. Dwivedi, learned Counsel for O. P. No. 2 who files the counter-affidavit submit that this case may be disposed of finally, at this stage. This application has been filed with a prayer to quash the order dated 29-1-2007 passed by C. J. M. , Agra in Misc. Case No. 858 of 2006 whereby the learned C. J. M. concerned has rejected the final report of case crime No. 255 of 2006 under Sections 312, 120-B and 34 IPC P. S. Sadar Bazar, District Agra and summoned the applicants to face the trial. It is contended by learned Counsel for the applicants that the impugned order is illegal because the learned Magistrate has not applied his judicial mind and passed the impugned order without considering the police report properly. According to the impugned order the affidavit filed by O. P. No. 2 has also been considered. It is further contended that the learned C. J. M. concerned has not expressed his opinion that prima facie any offence is made out on the basis of material collected by the I. O. whereas it has been mentioned in the impugned order that issue of abortion shall be proved by examining the doctor and other necessary witnesses which shows that the investigation has not properly done and the learned C. J. M. concerned was not satisfied with the police report even them the learned C. J. M. concerned has taken cognizance and summoned the applicants, the impugned order is illegal and is liable to set aside.
(3.) IN reply of the above contentions, it is submitted by learned A. G. A. and Sri K. K. Dwivedi, learned Counsel for O. P. No. 2 that C. J. M. concerned discussed the evidence collected by the I. O. particularly the statement of Dr. Pillai. The impugned order is well reasoned order, it is not suffering from any illegality or irregularity. The present application is devoid of merits and the same may be dismissed. Considering the facts, circumstance of the case, submissions made by learned Counsel for the applicants, learned A. G. A. , Sri K. K. Dwivedi, learned Counsel for O. P. No. 2 and from the perusal of the impugned order dated 29-1-2007, it appears that the learned C. J. M. , Agra has taken the cognizance after considering the police report. The learned C. J. M. , Agra has not given any reference of material evidence collected by the I. O. , disclosing any offence against the applicants and no opinion has been expressed that prima facie and offence is made out. In a case where Investigating Officer comes to the conclusion that the alleged accused has been falsely implicated and submits the final report, in such, out of three options as to accept the final report, to reject the final report and to take the cognizance. The learned Magistrate committed the second error by mentioning in the impugned order that for proving the allegation of abortion, the examination of the doctor and some other necessary witnesses shall be required which shows that the learned C. J. M. concerned could not make up his mind in respect of the commission of any offence. The impugned order is illegal and is hereby set aside. The impugned order is set aside on a technical ground, therefore, the learned C. J. M. , Agra is directed to pass a fresh order on the police report (Final Report) within 15 days from the date of presentation of certified copy of this order, in accordance with the provisions of law.;