- (1.) THIS criminal revision, preferred by the revisionists under Sections 397/401 of The Code of Criminal Procedure, 1973 (here­inafter to be referred as Cr.P.C.), is di­rected against the judgment and order dated 28.02.2004 passed by Additional Sessions Judge/First FTC, Hardwar in Crimi­nal Revision No. 103 of 2002, Shiv Prakash Vs. State of Uttaranchal and others.
(2.) HEARD Sri Rajendra Kotiyal, Adv. for the revisionists, Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1 and Sri H.C. Pathak, Adv. for Re­spondent No.2 and perused the entire ma­terial available on record. In brief, the facts of the case are that on 29.5.2000, an First Information Report was lodged by the respondent no.2-Shiv Prakash against the revisionists-Nirmal Das @ Kalu, Bal Govind, Har Prasad and Koka Ram, on the basis of which the case was registered against the revisionists under Sections 307/504/506 IPC as Case Crime No.459 of 2000 and also u/s 25 of Arms Act, 1959 (hereinaf­ter to be referred as the Act) as Case Crime No.460 of 2000. After that the matter was investigated by the Investigating Of­ficer and after the investigation, the I.O. submitted the charge sheet against the accused persons. But later on the investi­gation was transferred to another I.O. and in the reinvestigation, the final report was submitted in the aforesaid case. The re­spondent no.2-Shiv Prakash filed a protest petition before the Chief Judicial Magistrate, Hardwar. After hearing coun­sel for the parties, learned CJM, Hardwar vide his judgment and order dated 15.1.2002 rejected the protest petition and accepted the final report submitted by the police. Against the said judgment and or­der dated 15.1.2002, respondent no.2-Shiv Prakash preferred a revision. The said revision was allowed by Addl. Sessions Judge/First FTC, Hardwar vide his judg­ment and order dated 28.2.2004 whereby judgment and order dated 15.1.2002 passed by CJM, Hardwar accepting the final report submitted by the I.O. in case crime No.459/2000 under Sections 307/504/506 IPC and taking cognizance u/s 182 I.P.C., was set aside. Learned Addl. Sessions Judge further directed the trial court i.e. CJM, Hardwar to take cogni­zance against the revisionists under Sec­tions 307/504/506 IPC and to proceed according to law. Feeling aggrieved with the aforesaid judgment and order dated 28.2.2004, the revisionists have preferred the present revision before this Court.
(3.) SRI Rajendra Kotiyal, learned counsel for the revisionists has argued that he is only challenging the judgment and order dated 28.2.2004 by which the Addl. Sessions Judge/First FTC, Hardwar has directed the trial court i.e. CJM, Hardwar to take cognizance against the revisionists u/s 307/504/506 IPC. He fur­ther submitted that the Addl. Sessions Judge should not have directed the CJM to take cognizance against the accused persons under the relevant sections and only the CJM is entitled to take cogni­zance and that too after examining and appreciating the evidence on record. In support of this argument, he cited a judgment rendered by learned Single Judge of this Court in the case of Nathi Singh Tomar Vs. State of Uttaranchal and another reported in 2003 (46) ACC 758. Sri H.C. Pathak, Advocate appear­ing for. respondent no.2 also conceded to this point and agreed that up to this extent, the judgment and order passed by learned Addl. Sessions Judge is not correct. The direction given by learned Addl. Sessions Judge, Hardwar to the trial court to take cognizance against the revisionists under Sections 307/504/506 IPC is not as per law. The learned Addl. Sessions Judge was only competent to consider the legality and propriety of the order passed by CJM, Hardwar and if it was found that there was no appraisal of the material on record, the learned Addl. Sessions Judge should have set aside the impugned order of rejection of protest petition and should have di­rected the CJM, Hardwar to re-consider the evidence on record as to whether a prima facie case was made out or not against the accused persons. Considering this, the revisional judgment and order is liable to be modified up to this extent.;