Suresh Kumar Gupta, J.
1. This writ petition has been filed by the petitioner being aggrieved with the order dated 04.08.2004 passed by Additional Sessions Judge in which the summoning order dated 07.09.2000 passed by Magistrate was quashed by Sessions Judge.
2. Main contention of the petitioner is that petitioner lodged an F.I.R. against the opposite party no. 2 to 5 under Sections 323, 324, 308, 504, 506 & 452 I.P.C. Police Station Junction Hathras District Hathras (Mahamaya Nagar).
3. In this case petitioner and his wife Smt. Bhagwati were seriously injured and was examined on 20.04.1998 at 4 A.M. Injury report of Rma Ji Lal and Smt. Bhagwati are annexed as Annexure No. 2, in which Sri Ram Ji Lal have got three injuries of incised wounds. Injury no. 1 was kept under observation and X-ray of the chest was suggested. As per injury report of Smt. Bhagwati there were two incised wounds and one abrasion all injuries were simple in nature.
4. After investigation of this case, final report was submitted by investigating officer on 05.10.1998. After receiving the notice, petitioner has filed protest petition against final report allowing therein the police alongwith collusion of the accused persons submitted the final report without recording the statement and without collecting the evidence in arb
Please Login To View The Full Judgment!
itrary manner. A protest petition alongwith affidavit dated 07.08.2000 is also filed before Judicial Magistrate, Hathras. Judicial Magistrate, Hathras has summoned the accused persons under Sections 323, 324, 504, 506, 308 & 452 I.P.C. vide his summoning order dated 07.09.2000. Against the summoning order dated 07.09.2000, opposite parties have filed a revision no. 136/2006 in the court of District and Sessions Judge, Hathras on 11.10.2002. Revisional Court in arbitrarily manner without applying its mind quashed the cognizance order dated 07.09.2000 and also accepted the final report submitted by investigating officer. Revision filed by opposite party, was allowed on the sole ground to accepting the plea of alibi filed by opposite party through affidavit. On this sole plea of alibi, Sessions Court set aside the order dated 07.09.2000, passed by Magistrate and accepted the final report. It is also contended that after consideration of the material available on record, Magistrate has taken cognizance of offence in exercise of power under Section 190 1 (B) Cr.P.C. and directed to issue process against opposite parties.
5. Learned counsel for the petitioner stated that after investigation if final report was submitted by police officer then three courses open to the Magistrate:-
1. He may accept the final report and drop the proceedings after hearing the complainant/first informant.
2. He may dis-agree with the conclusion arrived by the police officer and straightway may take cognizance in exercise of the power under Section 190 1 (B).
3. He may order for further investigation.
6. It is settled law that accused has no right to hear at this stage prior to issue process against him. Magistrate in straightway manner has taken cognizance disagreeing with the conclusion arrived at by the investigating officer. Revisionoal Court has illegally quashed the summoning order dated 07.09.2000 and also accepts the final report. It is also argued by learned counsel that Sessions Court in exercise of reivisional court power cannot accept the final report. So Sessions Judge acted illegally on plea of alibi only on the ground of affidavit of witness not supporting the prosecution case does not change the nature of offence. Sessions Judge committed jurisdictional error in setting aside the order of Magistrate even also accepted the final report and requested to issue a writ order or direction in the nature of certiorari quashing order dated 04.08.2004 passed by A.S.J., Hathras.
7. Learned counsel for opposite party has filed their counter affidavit on 13.01.2006. In reply stated that injury report does not support the prosecution version and considering this fact, the Investigating Officer has submitted final report and the Magistrate without calling answering respondent to cognizance on the protest petition which is filed by the petitioner and the same is illegal and order passed by Magistrate for taking cognizance, is liable to be quashed. Revisional Court has rightly quashed summoning order passed by Magistrate, and it is also stated that Investigating Officer has investigated the case and all witness does not support the case of petitioner so the final report was submitted. Magistrate only on the basis of the statement of informant-petitioner, Ram Ji Lal, summoned the opposite party, while no other witness supported prosecution version. Statement of informant-petitioner, Ram Ji Lal, was not supported by any other evidence so Magistrate has committed irregularity and illegality in summoning opposite party and rightly quashed the summoning order. It is also argued that petitioner has alternative remedy to file revision against the order of the Sessions Judge dated 04.08.2004, and therefore, the aforesaid writ petition is liable to be dismissed on the ground of alternative remedy as held by Division Bench in case of H.K. Rawal and Others Vs. Nidhi Prakashan and Others reported in SCC 1989 Page 395. It is also pointed out in his counter affidavit that prosecution had not examined the petitioner and his wife, Bhagwati before the Magistrate so on this ground, summoning order passed by Magistrate, is wrong and on aforesaid ground, learned counsel for opposite party prays that revision is liable to be dismissed.
8. After this rejoinder affidavit filed by the petitioner, therein, counsel for the petitioner contended that learned Magistrate committed no illegality in summoning the accused persons and Sessions Judge without going into findings, only on relying upon plea of alibi and affidavit of witnesses, set aside the order of Magistrate which is bad in eyes of law. It is also argued that it is well settled law that revisional court has very limited jurisdiction. He can remand the matter for consideration under Section 397 I.P.C. in 401 Cr.P.C. Thus, revisional court has committed gross illegality by setting aside the summoning order. Sessions Judge has quashed the proceedings without facing trial by opposite party. Opposite party no. 2 to 5 have no right to be heard prior to issuance of process. Magistrate have full power to direct /to take cognizance and may be dis-agreed with the conclusion given by the Investigating Officer.
9. I have heard learned counsel for the petitioner and learned A.G.A. and perused the material available on record.
10. It is crystal clear that F.I.R. was registered by petitioner against opposite party no. 2 under Sections 323, 324, 504, 506, 308. 452 I.P.C. and after recording statement of injured witness and other witnesses, final report was submitted by the Investigating Officer. Thereafter, Magistrate after considering the protest petition and perusing the record directly summoned the accused under Section 190 1 (1-B) of Cr.P.C.
11. In Gangadhar Janardan Mhatre vs. State of Maharashtra and others 2004 (7) SCC 768, the Court reiterating above view said as under:
"The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 109(1)(b) and direct the issue of process to the accused." (emphasis added)"
12. In Pakhando and others Vs. State of U.P. (supra), a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:
(I). He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;
(II). He may take cognizance under Section 190(I)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(I)(b) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
13. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Police submitted final report which was not accepted by Magistrate, not on the basis of material collected by Police, but, relying on Protest Petition and accompanying affidavit Magistrate issued process. Court disapproved the aforesaid procedure adopted by Magistrate and said:
"Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is vitiated." (emphasis added)
14. In the instant case, after submission of final report under Sections 173(1) CR.P.C. against opposite party no. 2, the learned Magistrate after considering the protest petition dated 07.08.2000 alongwith injury report and material available on record, rejected the final report and arrived at conclusion that case is made out against opposite party under Sections 323, 324, 504, 506, 308 & 452 I.P.C. and cognizance order under Section 190(i) b Cr.P.C. passed on 07.09.2000 and summoned the accused/opposite party. Contention of the counsel for the petitioner is perfectly correct that the Magistrate has power straightway disagreeing with the conclusion arrived at by the Investigating Officer. Being aggrieved with the order dated 07.09.2000, opposite parties filed revision in the court of District and Sessions Judge, Hathras on 11.10.2002. Sessions Court considered the plea of alibi of the accused only on the basis of affidavit submitted by opposite party and quash the order of cognizance passed by Magistrate against the opposite party under Sections 452, 323, 324, 504, 506 & 308 I.P.C. on 04.08.2004 and accepted the final report submitted by investigating officer. Revisional Sessions Court has allowed the revision of opposite party on the basis of plea of alibi filed on affidavit of witness. But it is a settled principal of law that plea of alibi must not be looked at the stage of investigation and inquiry. Plea of alibi of accused shall be examined only during the trial at the stage of defence. Order of learned Revisional Sessions Court is totally based on plea of alibi of accused on the basis of affidavit submitted by witness before the Sessions Court. So the order of the lower revisional court is not sustainable in the eyes of law. On exercising the revisional power, learned Sessions Court cannot quash the cognizance and summoning order passed by the Magistrate. In exercising its revisional power, jurisdiction of Sessions Court is very limited and the Sessions Court can only examine the illegality, irregularity and impropriety of the order passed by the Magistrate. If the Sessions Court find any illegality, irregularity or jurisdictional error then Sessions Court cannot quash the proceedings but the revisional court have only power to issue direction by pointing out the error regarding the order passed by the Magistrate. Therefore, order of learned Sessions Court, is wholly erroneous and against the set principles of law. So as aforesaid discussion, I am of the view, that petition of petitioner is liable to be allowed and order dated 04.08.2004 is hereby quashed.
15. Order of learned Magistrate is perfectly legal so it is directed to the learned Sessions Court to pass fresh order in accordance with law as observation made by this Court.
16. Writ petition is disposed of as allowed, accordingly.
17. The office is directed to transmit back lower court record with a copy of judgment and order of this Court for immediate compliance