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KALLU V/S SHAHID ALI, decided on Monday, February 6, 1995.
[ In the High Court of Allahabad, Criminal Revn. Appeal No. 466 of 1983. ] 06/02/1995
Judge(s) : O.P. PRADHAN
Advocate(s) :
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  "1995 CrLJ 3489"  







    Code of Criminal Procedure 1973 ? Section 169 Section 200 Section 202 -     (1) THIS revision is directed against the order dated 6-8-1983 passed by learned Sessions Judge Bahraich in Criminal Revision No. 50 of 1983 whereby he allowed the revision of opposite party No. 1 by setting aside the order dated 23-4-1983. passed by VII Addl. Munsif Magistrate Bahraich. (2) THIS revision arises out of the following circumstances : At about 7. 00 - 8. 00 p. m. on 27-9-1981 opposite party No. 1 was taking food in the inner courtyard of his house and a lantern was also burning there. The revisionists along with two other persons entered into the side courtyard and revisionist Beni Madho exhorted the revisionist Kallu to kill opposite party No. 1. Thereupon Kallu fired a shot at opposite party No. 1 Shahid Ali from his country made pistol with the intention to kill him but the shot got misfired. Shahid Ali raised an alarm which attracted to the scene of occurrence several persons. The culprits fled from the house but while running out of the house the countermand pistol carried by Kallu fell down at the door of Shahid Ali. The persons who reached the place of occurrence on the hue and cry raised by Shahid Ali identified the culprits in the torch-light. Shahid Ali lodged a written report of this incident the next day i. e. 28-9-1981 at 4 p. m. and deposited the country-made pistol together with the spent cartridge at Police-Station Kotwali Dehat Bahraich. On the basis of this written-report a case under Section 307 I. P. C. was registered and investigation followed. However the Police submitted a final report under Section 169 Cr. P. C. Before the final report could be accepted by the learned Magistrate Shahid Ali who is the complainant of the case lodged a protest application in the Court of learned Magistrate on 16-3-1983. By means of this protest application he clearly alleged that the Investigating Officer had colluded with the accused persons and no interrogation of the witnesses named in the F. I. R. was made by the Investigating Officer either. Accordingly the complainant prayed by means of the said application that the statements of the witnesses may be recorded and that the final report submitted by the Police may not be accepted and further that the accused persons he summoned for trial in accordance with law. Together with this application the complainant also filed affidavits of the eye-witnesses mentioned in the F. I. R. The learned Magistrate requisitioned the country-made pistol and spent cartridge from the Investigating Officer but he was intimated by the police concerned that the country made pistol and spent cartridge had been destroyed on the assumption that the final report had been accepted. The learned Magistrate by means of the order dated 23-4-1983 came to find that there were no adequate grounds to summon the accused persons and he rejected the protest application filed by the complainant Shahid Ali. Aggrieved by this order of the learned Magistrate Shahid Ali preferred a revision in the Court of Sessions Judge Bahraich. This gave rise to Criminal Revision No. 50 of 1983. The learned Sessions Judge by means of the impugned order allowed the revision and set aside the order dated 23-4-1983 passed by the learned Magistrate and further allowed the protest application dated 16-3-1983 filed by Shahid Ali in the Court of learned Magistrate and also directed the learned Magistrate to reject the final report submitted to him and proceed further against the accused persons for the offence under Section 307 I. P. C. It is this order of the learned Sessions Judge which has been challenged by means of revision filed by the accused persons namely Kallu and Beni Madho. (3) I have heard the learned counsel for the revisionists as also the learned counsel for the opposite party No. 1 and the learned Government Advocate. The record of the Court of learned Magistrate has also been perused by me as also the impugned judgment and order of the learned Sessions Judge. (4) THE learned counsel for the revisionists strenuously contended before me that the learned Sessions Judge committed manifest error of law by allowing the protest application of the complainant Shahid Ali and further directing the learned Magistrate to reject the final report and proceed further against the accused persons of the offence under Section 307 I. P. C. The learned counsel further contended that once the protest application had been filed before the learned Magistrate the same had to be treated and dealt with as a complaint. The learned Sessions Judge argument proceeded placed reliance on the affidavits filed in support of the protest application and wrongly reached the conclusion that ample evidence had been filed in the form of affidavits before the learned Magistrate and therefore sufficient ground for proceeding against the accused persons was made out. The learned counsel also submitted that it was beyond the domain of the learned Sessions Judge to allow the protest application of the complainant and direct the learned Magistrate to reject the final report and further to proceed against the accused persons for the offence under Section 307 I. P. C. (5) THE learned counsel for opposite party No. 1 submitted in reply that the order dated 23-4-1983 passed by the learned Magistrate had been rightly set aside by the learned Sessions Judge inasmuch as the learned Magistrate had rejected the protest application of the complainant Shahid Ali on flimsy grounds. The learned counsel rightly contended that it was immaterial if no injury had been caused to the complainant as a result of shot fired at him by accused Kallu. According to him it is the intention to kill which is material in such a case. The learned Sessions Judge therefore rightly repelled this ground taken by the learned Magistrate. Likewise the ground taken by the learned Magistrate that the country made pistol and the spent cartridge having been destroyed by the Police the charge could not be framed against the accused persons was also rightly rejected by the learned Sessions Judge. However the learned counsel for the opposite party No. 1 could not support the part of the operative order passed by the learned Sessions Judge whereby he allowed the protest application of the complainant and directed the learned Magistrate to reject the final report and proceed further against the accused persons. (6) I have given my careful consideration to the contentions raised by the learned counsel for the parties. In my view once the complainant had filed a protest application before the acceptance of the final report by the learned Magistrate the law required the learned Magistrate to treat and deal with the Protest application as if it were a complaint made to him. However the learned Magistrate did not deal with the protest application in the manner complaint is to be dealt with in accordance with law. As already indicated earlier the complainant had filed affidavits in support of the protest application and these affidavits were taken into consideration by the learned Magistrate as also the learned Sessions Judge while giving a thought to the matter of protest application. It is trite that affidavits could not be considered as evidence in the case. Once the protest application had to be considered as if it were complaint the law required the learned Magistrate to record on oath the statement of the complainant under Section 200 Cr. P. C. and to examine on oath the witnesses produced by the complainant under Section 203 Cr. P. C. and thereafter record his finding on the basis of such evidence. In the present case the learned Magistrate did not take recourse to this procedure. Not only this the learned Magistrate also adopted unreasonable grounds for rejecting the protest application; these grounds being absence of injury as a result of firing at the complainant and the destruction of country made pistol and spent cartridge at the hands of the Police. Consequently the part of the impugned order of the learned Sessions Judge whereby he set aside the order dated 23-4-1983 passed by the learned Magistrate was perfectly justified and is manifestly correct. However the remaining part of the impugned order passed by the learned Sessions Judge cannot be sustained inasmuch as the learned Sessions Judge went beyond his jurisdiction by allowing the protest application of the complainant and directing the learned Magistrate to reject the final report and proceed further against the accused persons under Section 307 I. P. C. A perusal of the impugned judgment and order of the learned Sessions Judge shows that he placed reliance on the affidavits filed in support of the protest application and reached on erroneous conclusion on the basis of such affidavits that there was sufficient ground to proceed against the accused persons. In fact this consideration had to be made by the learned Magistrate and it was beyond the learned Sessions Judge to assume the power conferred on the learned Magistrate. Accordingly the part of the impunged order whereby the learned Sessions Judge set aside the order dated 23-4-1983 passed by the learned Magistrate is liable to be sustained but the remaining part of the impugned order of the learned Sessions Judge cannot be sustained in law. (7) IN the result this revision is partly allowed. While maintaining the part of the impugned order of the learned Sessions Judge whereby he set aside the order dated 23-4-1983 of the learned Magistrate the remaining part of the impugned order of the learned Sessions Judge is quashed. The learned Magistrate will treat and deal with the protest application dated 16-3-1983 filed by the complainant Shahid Ali in connection with Crime No. 493 of 1981 Police Station Kotwali Dehat Bahraich under Section 307 I. P. C. as if it were a complaint and proceed further with the same in accordance with law. The complainant Shahid Ali who is opposite party No. 1 directed to appear in the Court of learned Magistrate on 30-3-1995. The learned Magistrate will make all efforts to expedite the proceedings since this case has become pretty old. (8) THE records of the Lower Court will be sent back within fifteen days positively. Revision partly allowed.