NAUSHAD Vs. STATE OF U P

JUDGEMENT

(1.) Instant revision has been preferred against order dated 10th May, 2001 passed by learned Sessions Judge, Bulandshahr in Criminal Revision No. 230/01 Mohd. Aslam v. State of U.P. by which the revision filed by respondent No. 2 Mohd. Aslam was allowed and the Magistrate concerned was directed to pass appropriate orders with regard to investigation of the version of the revisionist by some Senior Officer of the Police not below the rank of Deputy Suptt. of Police. It was also directed that the same officer would investigate the matter with effect from initial stage ignoring the investigation already done. This revision was preferred against order dated 9-2-2001 by which the then Chief Judicial Magistrate, Bulandshahar had rejected the application of Mohd. Aslam, respondent No. 2 moved under Section 156(3) of the Code of Criminal Procedure.

(2.) In the instant revision, earlier argument of Shri Sunil Kumar, learned counsel for the revisionists and learned AGA was heard and the case was listed for rest arguments but none appeared for the revisionist on adjourned date. Hence rest argument of learned AGA was heard and judgment is being delivered.

(3.) The fact of the case is that one Mumtaz, revisionist No. 3 lodged an F.I.R. against Hasim, Teja and Sajan on 31-1-2001 at 8.30 a.m. bearing Case Crime No. 47/2001 under Sections 459 and 380, IPC at P.S. Sikandarabad containing the fact that in the night of 30/31st January, 2001, he along with his family members was sleeping inside his house. He woke-up on some sound at about 3.30 a.m. and saw three miscreants present in his house who were taking away clothes, ornaments and cash. On alarm raised by him and his family members, persons of the locality assembled, apprehended two miscreants who told themselves to be Hasim and Teja. The miscreant who was successful in making his escape good was Sahajad alias Shanker. He ran away along with ornaments, cash and clothes. After the F.I.R. was lodged, statements of witnesses Shakeel, Jafir, Bhujahid, Swalim, Smt. Harhat Jaham, Smt. Nizima Aqueel Ahmad, Mukhliar Ahmad and Kausheep were recorded. The miscreants Hasim and Teja were beaten by mob. They were carried to the hospital where they died. After investigation, the investigating officer arrived at the conclusion that while committing theft abovementioned two persons were arrested on the spot, beaten by the mob, as a result of which they died and the case proceeded against Shahjad under Sections 459 and 380, I.P.C. Later on one Mohd. Aslam moved an application against Naushad, Saleem and Mumtaz under Section 156(3) of Criminal Procedure Code on 1st February, 2001 that in the night of 30th January, 2001, he along with his younger brother Hanif and one another were going back after attending picture, Naushad, Saleem and Mumtaz met on the way, carried his brother to his house and beat him and, thereafter, carried him to District Hospital, Bulandshahar, where he was declared dead. This application moved under Section 156(3), Cr. P.C. was rejected by the Chief Judicial Magistrate on the ground that in view of (1990) All WC 433 : (1990 All LJ 359), Ram Mohan Garg v. State of U.P., second F.I.R. could not be lodged. When revision was preferred, impugned order was passed. Hence instant revision has been preferred before this Court.