Arvind K.Tripathi - (1.) LIST revised. Heard learned counsel for the revisionist, counsel for the opposite party No. 2, learned A.G.A. and perused the record.
(2.) THE present criminal revision has been filed against the judgment and order dated 26.9.2002, passed by the Additional District and Session Judge. Court No. 3, Aligarh in Criminal Revision No. 77/2002, Sunil Kumar Garg v. State of U. P. and another, setting aside the order dated 20.2.2002, passed by learned Chief Judicial Magistrate, Aligarh taking cognizance on the complaint and summoning the revisionist in Criminal Complaint Case No. 679/2000, R. A. Sharma v. Sunil Kumar Garg and others. The brief facts of the case is that revisionist lodged an F.I.R. registered as Case Crime No. 174A/94, under Sections 147, 148, 307, 323, 392, 504 and 506, I.P.C. at P. S. Banna Devi, district Aligarh against opposite party No. 2 Sunil Kumar Garg and four others. Before that an F.I.R. was lodged by the opposite party No. 2 against the revisionist, which was registered as Case Crime No. 174/94, under Section 395, I.P.C., P. S. Banna Devi, Aligarh in that F.I.R. the revisionist and one Arvind shown to be son of the revisionist was named, though according to revisionist there is no son of the revisionist by name of Arvind. Earlier the first information report was not registered then on the application moved under Section 156 (3), Cr. P.C. the first information report was lodged as Case Crime No. 174A/94. Thereafter, the Writ Petition No. 40819/94 was filed by opposite party No. 2 in the High Court of Judicature at Allahabad for transfer of the investigation. A Writ Petition No. 37936/94 was also filed by the revisionist before this High Court. Both the writ petition was disposed of and the Hon'ble Court by order dated 4.1.1995 directed that the investigation would be conducted by the S.I.S., thereafter S.I.S. has submitted charge-sheet in Case Crime No. 174/94 and was sent to the Court concerned. However, in Case Crime No. 174A/94 the matter was sent for further investigation/reinvestigation to the civil police of police station Banna Devi, thereafter, the civil police has submitted final report in the aforesaid case. Counsel for the revisionist submitted that one Anil Agarwal was posted at Aligarh as Additional Superintendent of Police, City Aligarh, who was close relative of the opposite party No. 2. Firstly, the first information report of the revisionist was not registered and thereafter, the first information report was registered on the direction of the learned Magistrate passed on application under Section 156 (3), Cr. P.C. and the matter was investigated by the S.I.S. in compliance of the order dated 4.11.1995, passed by the High Court in Writ Petition No. 40819/94 but under the influence and pressure of the aforesaid Superintendent of Police, City Aligarh the matter was sent for further investigation by the civil police, though there was direction of the High Court for investigation by the S.I.S. and get the final report submitted. He further submitted that when there was delay in lodging first information report from the side of the revisionist then to know the progress of the case an application was moved before the court of learned Chief Judicial Magistrate, Aligarh in which the local police furnished a false information and by report dated 5.7.2000 it was reported that the investigation was in progress. However, by report dated 29.8.2000 it was informed that the final report had already been submitted on 5.5.1999. Hence, the revisionist came to know regarding filling of the final report on 29.8.2000 when report was placed before the learned Chief Judicial Magistrate by the local police. From the aforesaid fact, it is clear that the local police was not acting fairly. Since the local police was not acting fairly due to influence and pressure of the aforesaid Additional Superintendent of Police, City Aligarh, hence revisionist filed a complaint on 3.5.2000. This complaint was filed before the police report dated 29.8.2000 giving the information regarding submission of the final report. When revisionist came to know regarding submission of the final report on 29.8.2000 then a protest petition was filed on 7.11.2000 in Case Crime No. 174A/94 in which the revisionist was informant. The aforesaid protest petition was rejected on 20.2.2002 on the ground that the final report had already been accepted on 3.11.1999. Counsel for the revisionist pointed out that if the final report was submitted and it was accepted on 3.11.1999 then the police has purposely concealed the aforesaid fact in his report dated 5.7.2000 informing the learned Chief Judicial Magistrate that the investigation was in progress. Against the aforesaid order dated 20.2.2002 Criminal Revision No. 113/2002 was preferred by the revisionist and the revision was rejected by order dated 20.8.2002 considering the fact that cognizance has already been taken in the complaint case. Counsel for the revisionist further pointed out that the learned Chief Judicial Magistrate on the same day rejected the protest petition, i.e., on 20.2.2002, however, considering the complaint on case the cognizance was taken on 20.2.2002 and the summons were issued. Against the aforesaid order dated 20.2.2002 passed by learned Chief Judicial Magistrate taking cognizance and issuing summons the Criminal Revision No. 77/2002 was preferred by opposite party No. 2, which was allowed by the Additional District and Sessions Judge, Court No. 3, Aligarh on 26.9.2002. Counsel for the revisionist further contended that this fact was brought to the notice of the revisional court that the protest petition was rejected by the learned Chief Judicial Magistrate on the same day, i.e., 20.2.2002 against which revision was preferred and that was also rejected by order dated 20.8.2002. He further submitted that the final report was accepted by the learned Chief Judicial Magistrate on the ground that the revisionist has filed application before the learned Chief Judicial Magistrate to the effect that the parties had settled the matter and final report might be accepted. The protest petition filed by the revisionist was rejected on the ground that from perusal of both the signature of the earlier application and the application moved subsequently appeared to be same. Without obtaining any expert opinion whether the signature was same or not the protest petition was rejected. The application was also moved by the revisionist for initiating proceeding against the opposite party No. 2 under Section 340, Cr. P.C. It has further been contended that if the final report was accepted the revisionist can file a complaint case and merely on the ground that the final report was accepted the complaint could not be rejected. He relied the judgment of the Apex Court in Mahesh Chandra v. B. Janardan Reddy, 2003 (46) ACC 182 : 2003 (2) ACR 1543 (SC), in which it was observed by the Apex Court that learned Magistrate can take cognizance of the offence on complaint even after acceptance of the final report. He further contended that the revisional court has wrongly allowed the revision on the ground that the final report was accepted on 3.11.1999 and after one year the protest petition was filed on 7.11.2000, which was rejected on 20.2.2002 against which the revision was preferred and that too was rejected on 20.8.2000 by the Additional District and Session Judge, Court No. 7, hence regarding the incident dated 25.4.1994 unless the order of the revisional court dated 20.8.2002 is challenged before the competent court it would not be possible under the law to file a second case. This observation was illegal and against the law and fact. Counsel for the opposite party No. 2 submitted that since regarding the same incident the trial court rejected the protest petition and the revision was also rejected, hence filing of the complaint and taking cognizance on that would not be permissible regarding the same incident. The final report was accepted on the application of the revisionist, hence his protest petition after one year was not maintainable and the same was rightly rejected. He further contended that the learned Chief Judicial Magistrate on the same day rejected the protest petition regarding the same incident and in the proceeding initiated on complaint the cognizance was taken and summons were issued, which was illegal and without jurisdiction. Hence, the revisional court has rightly set aside the impugned order dated 20.2.2002 by order dated 26.9.2002.
(3.) NOW from perusal of the record and considering the fact, it is clear that when the police report was called for, then by report dated 5.7.2000 the local police of police station Banna Devi had reported that the investigation was in progress. It is also clear that while deciding the Writ Petition No. 40819/94 the direction was issued by the High Court for investigation of the matter by S.I.S. and when the S.I.S. has submitted charge-sheet, the order was passed by the Superintendent of Police for re-investigation/further investigation of the case by the police of police station Banna Devi supports the allegation of the revisionist and that order was against the order of the High Court. Further, prima facie it supports the allegation of the revisionist that the final report was submitted by the civil police and not only this even behind the back of the revisionist it was accepted on the basis of alleged compromise. As per contention made on behalf of the revisionist without any notice and behind back of the applicant informant the final report was accepted. Thereafter, by the report dated 19.8.2000 when the civil police has informed on 29.8.2000 that the final report had already been submitted on 5.5.1999. However, before it came to notice of the revisionist the complaint had already been filed on 3.5.2000. Thereafter, the protest petition was preferred on 7.11.2000 but that was rejected by the learned Chief Judicial Magistrate on the ground that the final report had already been accepted on 3.11.1999 on the basis that there was no objection from the side of the applicant informant but the applicant informant himself supported for acceptance of the first information report. The learned Magistrate has decided merely on perusal of the signature that it appeared to be of the applicant informant without obtaining any expert report. Complaint was also pending in the same Court and on the same day without clubbing both the matter separately the order was passed rejecting the protest petition and in the complaint taking cognizance and summoning the accused opposite party No. 2 and others, i.e., on 20.2.2002. It is well-settled that when the protest petition was filed the Magistrate was required either to proceed as a State case. If, prima facie offence was disclosed or directed for further investigation or to proceed as a complaint case. The protest petition was not accepted on merit and without following the aforesaid procedure it was rejected. As far as the summoning order in the complaint case is concerned, from perusal of the complaint, in view of the allegation considering the statement under Sections 200 and 202, Cr. P.C. it cannot be said that prima facie no offence is made out and even it has not been challenged. Apart from that at this stage while taking cognizance and for issuing summons the trial court was not required to consider the matter as a mini trial to scrutinize the evidence. Since the protest petition was rejected hence the learned Chief Judicial Magistrate has rightly taken cognizance and issued summons in the complaint case filed by the revisionist. As far as the averments made in the complaint are concerned, that will be examined during trial after affording opportunity to the parties to adduce the evidence in accordance with law. This fact was brought to the notice of the revisional court that no application was filed from the side of the revisionist for acceptance of the final report and when complaint was filed on 3.5.2000 the revisionist was not aware regarding filing of the final report. The revisional court also failed in appreciating that the police report itself tried to conceal the correct fact and firstly it was informed that the investigation was in progress and final report had already been submitted. Hence, in view of the fact, the complaint was maintainable. Whether the alleged incident took place or not, firstly, it is clear that the S.I.S. has submitted charge-sheet on direction of the Superintendent of Police, Aligarh, the matter was investigated by the civil police and then final report was submitted and the same was accepted. The revisionist has right to file complaint and revisional court failed to consider that when the protest petition has already been rejected and even the revision filed against that order was also rejected then prima facie the right of revisionist of filing the complaint would be prejudiced, if the summoning order was set aside and the complaint was rejected on the ground that regarding the same incident the final report was accepted on application of the revisionist himself. Further, the final report was accepted merely on the ground that there was compromise in between the parties, though, it was disputed and even application has been filed for initiating proceeding under Section 340, Cr. P.C. In view of the aforesaid facts, the order of the revisional court is liable to be set aside, accordingly revision is allowed. The impugned order dated 26.9.2002, passed by the Additional District and Session Judge, Court No. 3, Aligarh is hereby set aside. Interim order, if any, is hereby discharged.;