Ravindra Singh, J. - (1.) HEARD the learned Counsel for the applicant and the learned A.G.A. for the State.
(2.) THIS application has been filed by the applicant Km. Faijina Siddiqui with a prayer to quash the proceedings of Crimi nal Case No. 6814 of 2007 under sections 307, 302 and 120-B/34 I.P.C. pending in the Court of learned C.M.M. Kanpur Nagar. It is contended by the learned Counsel for the applicant that in the pres ent case F.I.R. has been lodged by O.P. No. 2 in case crime No. 156 of 2006 P.S. Sisamau district Kanpur Nagar on 24.10.2006 at 10.40 p.m. against Mohd. Taufiq and three unknown persons alleg ing therein that co-accused Mohd. Taufiq caused gun shot injury on the person of Mohd. Shahnawaz Siddiqui, the injured was taken to Hallot Hospital to provide medical aid but he succumbed to his inju ries on 5.11.2006, the matter was investi gated by the I.O. who submitted the charge-sheet dated 10.4.2007 against the applicant and co- accused Fazil Siddiqui under sections 307, 302 and 120-B/34 I.P.C. on which the learned C.M.M. Kanpur Na gar has taken the cognizance and sum moned the applicant to face the trial. Thereafter, the learned Magistrate con cerned has allowed the application under section 173(8) Cr.P.C. for doing further in vestigation. After further investigation, the I.O. came to the conclusion that no credible evidence for constituting the offence under section 120-B I.P.C. is available against the applicant, in such a situation the prosecu tion of the applicant is illegal. The appli cant and the co-accused Fazil moved an application in the Court of learned C.M.M. Kanpur Nagar for accepting the final report and to close the proceedings pending against them but the same has been ille gally rejected by the learned C.M.M. Kan pur Nagar on 4.3.2009, thereafter, the ap plicant has been summoned through the bailable warrant. The prosecution of the applicant is illegal, the same may be quashed. In reply to the above contention, it is submitted by the learned A.G.A. that in the present case, applicant has been charge-sheeted by the I.O. under sections 307, 302 and 120-B/34 I.P.C. on which the learned Magistrate concerned has taken cognizance and summoned the applicant to face the trial. Thereafter, an application was moved on behalf of the prosecution for doing fur ther investigation, the same has been al lowed by the learned C.M.M. Kanpur Na gar, the report of further investigation has been submitted by the I.O. mentioning therein that no credible evidence constitut ing the offence punishable under section 120-B I.P.C. is available against the appli cant but in the same report it has been mentioned that the charge-sheet under section 120-B has already been submitted against the applicant and co-accused Fazil, the report submitted by the I.O. was not conclusive but it was a parcha of the case diary, thereafter the application filed by the applicant and other co-accused persons for accepting the final report and closing the proceedings has been rightly rejected by the learned C.M.M. Kanpur Nagar vide order dated 4.3.2009. There is no illegality in the prosecution of the applicant.
(3.) CONSIDERING the submission made by the learned Counsel for the applicant, learned A.G.A. and from the perusal of the record it appears that in the present case charge-sheet has been submitted against the applicant under sections 307, 302 and 120-B/34 I.P.C. on which the learned Mag istrate concerned has taken cognizance and summoned the applicant to face the trial, thereafter, the application for doing further investigation under section 173(8) Cr.P.C. has been moved by the prosecution, the same has been allowed. Subsequently, I.O. submitted the parcha of the case diary mentioning therein that during further in vestigation no such evidence constituting the offence under section 120-B I.P.C. against the applicant and co-accused has been collected, on the basis of such report, the summoning order passed by the learned Magistrate cannot be recalled or the same cannot be set aside because it is settled position of law that after submission of the charge-sheet if the learned Magis trate concerned has taken cognizance thereafter final report is submitted after further investigation or by other investigation, the earlier order by which the cogni zance has been taken shall not be adversely affected. The material collected by the I.O. in further investigation or by way of doing some other investigation may be used by the accused person for the purpose of con tradiction at the stage of the trial, in the present case, no final report has been submitted, the learned Magistrate con cerned has not committed any error in re jecting the application filed by the appli cant and other co-accused persons which was moved for accepting the final report and closing the proceedings. There is no ground for quashing the proceedings of criminal case No. 6814 of 2007 pending in the Court of learned C.M.M. Kanpur Nagar, therefore, such prayer is refused. However, considering the facts and circumstances of the case, it is directed that the applicant shall appear before the Court concerned within 25 days from to day, till then bailable warrant/N.B.W. if any, issued against her shall be kept in abeyance. In case, she applies for bail, the same shall be heard and disposed of expeditiously, if possible, on the same day. With the above direction, this applica tion is finally disposed of.;