Ravindra Singh - (1.) HEARD Sri Rajeev Gupta, Sri Rajrshi Gupta and Rakesh Dubey learned counsel for the applicant and learned A.G.A. for the State of U. P.
(2.) THIS application has been filed with a prayer to quash the proceeding of Case No. 2202 of 2008 under Sections 326, 504, 506 and 392, I.P.C. pending in the Court of learned Metropolitan Magistrate-IV, Kanpur Nagar arising out of Case Crime No. 193 of 2007, P. S. Swaroop Nagar, District Kanpur Nagar. The facts in brief of this case are that the F.I.R. has been lodged against the applicant on 17.7.2007 at 1.40 p.m. by the O.P. No. 2 Sri P. P. Singh in Case Crime No. 193 of 2007 under Sections 392, 307, 504 and 506, I.P.C., P. S. Swaroop Nagar, district Kanpur Nagar, after investigation the final report dated 25.1.2008 has been submitted by Investigating Officer in the Court of learned Metropolitan Magistrate-IV, Kanpur Nagar against which the O.P. No. 2 filed a protest application alongwith his affidavit, consequently the final report has been rejected and applicant has been summoned to face the trial vide order dated 15.4.2008. It is contended by learned counsel for the applicant that the first informant O.P. No. 2 has filed his affidavit in support of the protest application mentioning therein that the last 10 lines of his statement recorded under Section 161, Cr. P.C. by Investigating Officer are absolutely false because such statement has not been given by him but the learned Magistrate concerned has relied upon such statement recorded under Section 161, Cr. P.C. which has not been accepted by first informant O.P. No. 2 himself by clearly stating in his affidavit that last 10 lines of his affidavit are absolutely false and baseless. In such circumstances the reliance placed upon such statement by learned Magistrate concerned is not proper. The prosecution shall be done on such statement which has been recorded under Section 161, Cr. P.C. but the same has not been accepted by the first informant O.P. No. 2. In such a situation it would have been proper not to make reliance on such statement for the purpose of taking the cognizance and summoning the applicant, either the order of further investigation would have been passed or the protest application would have been treated as a complaint. The learned Magistrate concerned has not considered the well-settled legal position on submission of final report. The learned Magistrate concerned has not applied the judicial mind and passed the impugned order dated 15.4.2008 which is illegal and is liable to be set aside.
(3.) IN reply of the above contention it is submitted by learned A.G.A. that in the present case the final report has been submitted by the INvestigating Officer, the same was protested by the first informant O.P. No. 2 by way of filing the protest application supported by his affidavit. The first informant has made some allegations against the INvestigating Officer for not doing the fair investigation and illegally submitting the final report. Such allegations are generally made by the first informant on the basis of some presumptions, perceptions, or apprehensions because the notice is sent to the first informant but the copy of the police report is not supplied to the first informant, in such circumstances the allegations made by first informant in protest petition and his affidavit filed in support of protest petition are required to be checked by learned Magistrate concerned from the police report. If the learned Magistrate concerned comes to the conclusion that prosecution story is supported by the witnesses and there is sufficient material to proceed further against a person, the learned Magistrate concerned may reject the final report and the accused persons may be summoned on the basis of the material collected by the INvestigating Officer. If the learned Magistrate concerned comes to the conclusion that the allegations made in the protest application in respect of not doing fair/proper investigation or the statements of the witnesses have not been recorded or if recorded are not correct, the learned Magistrate concerned may reject the final report and may pass the order for further investigation or the protest petition may be treated as a complaint. In the present case, the statement of the witnesses have been recorded by the Investigating Officer in corroboration of the prosecution version. The learned Magistrate concerned has perused the police report and rejected the final report and summoned the applicant to face the trial, after considering the police report which discloses the commission of the offence having sufficient material to proceed further the persons summoned in such a position the averments made in the affidavit should not be given importance for the purpose of taking cognizance because it is not stage of appreciation of evidence for coming to the conclusion to convict or acquit the accused therefore, the statement of O.P. No. 2 (first informant) recorded under Section 161, Cr. P.C. which corroborates prosecution story, cannot be discarded only because he stated in his affidavit that last 10 lines of statement are not correct, at this stage only police report is to be considered, no extraneous material can be considered, the affidavit of O.P. No. 2 is an extraneous material which cannot be considered for the purpose of taking cognizance. The learned Magistrate concerned has not committed any error in rejecting the final report, taking the cognizance and summoning the applicant. There is no illegality in the impugned order dated 15.4.2008, passed by learned M.M. IV, Kanpur Nagar. The present application is devoid of merits, the same may be dismissed.;