Vijay Kumar Verma - (1.) -Challenge in this revision preferred under Section 397 of the Code of Criminal Procedure (in short the 'Cr. P.C.') is to the order dated 13.8.2007, passed by Sri Susheel Kumar, the then Judicial Magistrate Rampur, in Case No. 19 of 2008, Daya Ram v. Shanti Prasad and others, whereby accepting the final report submitted by the Police of P. S. Milak Khanam, District Rampur, in Case Crime No. 81/2005, under Section 409/504/ 506 I.P.C., the objections filed by the revisionist/complainant Daya Ram have been rejected.
(2.) SHORN of unnecessary details, the facts leading to the filing of this revision, in brief, are that the revisionist Daya Ram had lodged an F.I.R. on 1.4.2005 at P. S. Milak Khanam, District Rampur, where a case under Section 409/504/506, I.P.C. was registered at Crime No. 81/05 against Shanti Prasad and Mohd. Ahmad (respondents No. 2 and 3 herein). It appears that after investigation, final report was submitted by the police. When notice of that final report was issued to the complainant, he filed objections in the Court of Magistrate concerned on 4.1.2006. After hearing the counsel for the complainant and going through the case diary, the then Judicial Magistrate, Rampur rejected the final report and summoned the accused Shanti Prasad and Mohd. Ahmad to face the trial under Section 409/504/506, I.P.C. vide order dated 6.1.2006 passed in Case No. 118/12 of 2005. That order was challenged by the accused persons in the Court of Sessions Judge, Rampur by means of Criminal Revision No. 27 of 2006, which was decided on 7.10.2006 by the Additional Sessions Judge, Court No. 5, Rampur, whereby revision was allowed and after setting aside the order dated 6.1.2006, the case was sent back to the Court of Magistrate concerned for passing fresh order on the final report and objections of the complainant keeping in view the observations made in the judgment. Thereafter, the impugned order has been passed on 13.8.2007, which has been challenged in this revision. I have heard Sri M. B. Mathur, learned counsel for the revisionist, learned A.G.A. for the State and perused the record carefully. Since the accused persons have no right to contest the revision against the impugned order, hence notices have not been issued to them. It was vehemently contended by the learned counsel for the revisionist that the impugned order has been passed by the learned Magistrate in utter disregard of the order dated 7.10.2006 passed in Crl. Revision No. 27 of 2006, and hence the said order is liable to be quashed on this ground alone. It was also submitted that if in the opinion of the learned Magistrate, the material in the case diary was not adequate to take cognizance against the accused and to summon them to face the trial, then the objections/protest petition filed by the complainant against the final report ought to have been registered as complaint and after affording opportunity to the complainant to lead evidence under Section 202, Cr. P.C., further order either under Section 203 or 204, Cr. P.C. should have been passed. In support of these contentions, the learned counsel for the revisionist has placed reliance on the case of Pakhando and others v. State of U. P. and another, 2001 (43) ACC 1096 : 2001 (3) ACR 2541 (SC).
(3.) THE learned A.G.A., on the other hand submitted that impugned order does not suffer from any illegality, as the Magistrate can disagree with the conclusion drawn by the police after investigation and it was not obligatory for the Magistrate to treat the objections against final report as complaint. Having given my thoughtful consideration to the rival submissions made by learned counsel for the parties, I find force in the aforesaid contentions raised by the learned counsel for the revisionist. From the record it is revealed that summoning order dated 6.1.2006 passed by the then Judicial Magistrate, Rampur was challenged by the accused persons in Crl. Revision No. 27 of 2006, which was decided on 7.10.2006 by the Additional Sessions Judge, Court No. 5, Rampur. While allowing that revision vide judgment dated 7.10.2006, it was specifically observed by the learned lower revisional court that if in the opinion of the learned Magistrate, the evidence in the case diary is not sufficient, then the learned Magistrate ought to have proceeded further after following the procedure laid down in Chapter XV, Cr. P.C. while passing the impugned order, the learned Magistrate has totally ignored this observation made by the learned lower revisional court in its judgment dated 7.10.2006 passed in Criminal Revision No. 27 of 2006. Copy of this judgment is available on lower court, being Paper No. 9Kha/82 to 9Kha/87. It is very surprising and unfortunate too that the learned Judicial Magistrate passing the impugned order did not care to pursue this judgment of lower revisional court, as there is no mention of this judgment in the impugned order dated 13.8.2007. The objections of the complainant against final report have not at all been considered in the impugned order, although there was specific direction in the judgment dated 7.10.2006 of Crl. Revision No. 27 of 2006 that if the material in case diary is not sufficient to take cognizance, then the objections against the final report ought to have been treated as complaint and further action should have been taken after following the procedure laid down in Chapter XV, Cr. P.C. Therefore, the impugned order which has been passed ignoring aforesaid observation, which virtually was a direction of the learned lower revisional court, is liable to be set aside.;