- (1.) RAVINDRA Singh, J. As prayed by learned Counsel for the petitioners, he is permitted to amend the prayer No. 1 as the order dated 30-11-2006 passed by learned C. J. M. , Hamirpur may also be quashed.
(2.) THIS petition has been filed by the petitioners Raees Ahmad, Vishnu Shivhare, Keshav Shivhare, Raj Narain Budholia, Ram Adhar Singh and Ghanshyam Anuragi with a prayer to quash the order dated 30- 11-2006 passed by learned Chief Judicial Magistrate, Hamirpur in case No. 50/12 of 2006 arising out of Case No. 9 of 2006 under Sections 147, 148, 149, 171 (Cha) and 365, IPC, P. S. Kotwali Hamirpur, District Hamirpur by which the final report has been rejected and protest petition filed by the O. P. No. 2 has been accepted and it was registered as complaint case, and the order dated 12-12-2006 passed by learned Chief Judicial Magistrate, Hamirpur whereby the learned Magistrate has taken the cognizance and summoned the petitioners to face the trial for the offences punishable under Sections 147, 148, 149, 171 (Cha) and 365, IPC and the order dated 9-5-2007 passed by learned Sessions Judge, Hamirpur in Crime Revision No. 5 of 2007 whereby the revision filed by the petitioners has been dismissed. The facts in brief of this case are that in the present case the F. I. R. has been lodged by O. P. No. 2 Karan Singh on 7-1-2006 at 6. 50 p. m. in case Crime No. 9 of 2006 under Sections 147, 148, 149, 504, 506, 171 (Cha), 323, 365, IPC, P. S. Kotwali Hamirpur, District Hamirpur, it was investigated by the I. O. who submitted the final report dated 17-2-2006 in the Court of learned C. J. M. , Hamirpur. The first informant O. P. No. 2 filed a protest petition against the final report in the Court of learned C. J. M. , Hamirpur alleging therein that police administration was in connivance with the petitioners the I. O. has not correctly recorded the statements of first informant, the victims and other witness correctly, the same has been written as the I. O. desired. The investigation has not been done fairly and has submitted final report in favour of the petitioners. The witnesses including the victims were willing to give their statements in the Court concerned in support of the F. I. R. , therefore, it was prayed that protest petition may be accepted and the final report submitted by the I. O. may be rejected and the case may be further investigated, after considering the same learned C. J. M. concerned called some witnesses and their statements were recorded as a Court witness as C. W. 2 Dr. Brij Bhan Singh, C. W. 4 Smt. Saroj, C. W. 5 Smt. Prema Rani, C. W. 6 Bala Deen Kushwaha and C. W. 7 Smt. Champa Rani. Thereafter the final report has been rejected and the protest petition has been accepted but it was directed to be registered as a complaint case vide order dated 30-11-2006 and the next date was fixed for recording the statements of the witnesses under Sections 200 and 202, Crpc. Subsequently the statement of the first informant was recorded under Section 200, Crpc and the statements of the witnesses Bala Deen Kushwaha, Smt. Prema Rani, Smt. Champa Rani, Smt. Saroj and Mahesh Narain were recorded under Section 202, Crpc, after considering the same the learned Magistrate expressed the opinion that prima facie offence punishable under Sections 147, 148, 149, 171 (Cha) and 365, IPC is made out against the petitioners. The learned Magistrate took the cognizance of the aforesaid offences and summoned the petitioners to face the trial vide order dated 12-12-2006. The impugned order dated 12-12-2006 has been challenged by the petitioners by way of filing the Criminal Revision No. 5 of 2007, the same has been dismissed by learned Sessions Judge, Hamirpur on 9-5-2007. Being aggrieved by the orders dated 30-11-2006, 12-12-2006 passed by learned C. J. M. , Hamirpur and order dated 9-5-2007 passed by learned Sessions Judge, Hamirpur in Criminal Revision No. 5 of 2007 the petitioners approached this Court by way of filing the present writ petition.
(3.) HEARD Sri G. S. Hajela and Sri Pankaj Shukla, learned Counsel for the petitioners, learned A. G. A. and Sri Jitendra Singh Lodhi, Counsel for the respondent No. 2. It is contended by learned Counsel for the petitioners that for considering the police report the learned C. J. M. , Hamirpur has adopted a unusual procedure by way of recording the statements of some witnesses as Court witnesses. Considering the same the final report was rejected and protest petition was accepted and it was treated as a complaint. Thereafter again the statements of the first informant and some witnesses were recorded under Sections 200 and 202, Crpc and considering the same the cognizance has been taken and the petitioners have been summoned to face the trial. For consideration of the police report (final report) the procedure is prescribed as it may be accepted or it can be rejected or a further investigation may be done, the fourth option is to treat the protest petition as a complaint but surprisingly in the present case the witnesses were called by learned Magistrate concerned and their statements were recorded as a Court witnesses which is not permissible under the law. Therefore, the order dated 30-11-2006 is illegal, consequent the order dated 12-12- 2006 by which the learned C. J. M. concerned has taken the cognizance and summoned the petitioners to face the trial after recording the statements under Section 202, Crpc is also illegal. The learned revisional Court has also not considered this manifest error committed by learned C. J. M. concerned and dismissed the revision on 9-5-2007 it is also illegal. Therefore, the above mentioned orders are liable to be quashed. In reply of the above contention, it submitted by learned A. G. A. and learned Counsel for the respondent No. 2 that the learned Magistrate has not committed any error in rejecting the final report and treating the protest petition as a complaint. The learned Magistrate has taken the cognizance after recording the statements under Sections 200 and 202, Crpc. The learned revisional Court has rightly dismissed the petition as it was not maintainable. This petition is having no substance and is liable to be dismissed.;