ARVIND KUMAR TRIPATHI, J. - (1.) LIST revised. Heard learned Counsel for the revisionist, Counsel for the opposite party No. 2, learned AGA 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 Sessions Judge, Court No. 3, Aligarh in criminal revision No. 77/02, Sunil Kumar Garg v. The 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. Shanna v. Sunil Kumar Garg and others. The brief facts of the case is that revisionist lodged an FIR registered as case crime No. 174-A/94, under sections 147, 148. 307, 323, 392, 504, 506 IPC at P.S. Banna Devi, District Aligarh against op­posite party No. 2 Sunil Kumar Garg and four others. Before that an FIR was lodged by the opposite party No. 2 against the re­visionist, which was registered as case crime No. 174/94, under section 395 IPC, P.S. Banna Devi, Aligarh in that FIR 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. 174-A/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. 174-A/94 the matter was sent for further in­vestigation/re-investigation 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 filing 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. 174-A/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. 113/02 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. 77/02 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 parries 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. P. Janardan Readdy 2003 (46) ACC 182 = 2003 (2) AIC 632 (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 Sessions 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.
(3.) 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.;