NIRMAL DAS @ KALU Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS criminal revision, preferred by the revisionists under Sections 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to he referred as Code of Criminal Procedure), 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 v. State of Uttaranchal and Ors.

(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.

(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 Under Section 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 v. State of Uttaranchal and Anr. 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.