RAVI SHANKER SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) LIST revised. Heard learned counsel for the revisionist, counsel for the opposite party No. 2, learned A.G.A. and perused the record.

(2.) THE present criminal revision has been filed against the judgment and order dated 26.9.2002, passed by the Additional District and Session Judge. Court No. 3, Aligarh in Criminal Revision No. 77/2002, Sunil Kumar Garg v. State of U. P. and another, setting aside the order dated 20.2.2002, passed by learned Chief Judicial Magistrate, Aligarh taking cognizance on the complaint and summoning the revisionist in Criminal Complaint Case No. 679/2000, R. A. Sharma v. Sunil Kumar Garg and others.

(3.) NOW from perusal of the record and considering the fact, it is clear that when the police report was called for, then by report dated 5.7.2000 the local police of police station Banna Devi had reported that the investigation was in progress. It is also clear that while deciding the Writ Petition No. 40819/94 the direction was issued by the High Court for investigation of the matter by S.I.S. and when the S.I.S. has submitted charge-sheet, the order was passed by the Superintendent of Police for re-investigation/further investigation of the case by the police of police station Banna Devi supports the allegation of the revisionist and that order was against the order of the High Court. Further, prima facie it supports the allegation of the revisionist that the final report was submitted by the civil police and not only this even behind the back of the revisionist it was accepted on the basis of alleged compromise. As per contention made on behalf of the revisionist without any notice and behind back of the applicant informant the final report was accepted. Thereafter, by the report dated 19.8.2000 when the civil police has informed on 29.8.2000 that the final report had already been submitted on 5.5.1999. However, before it came to notice of the revisionist the complaint had already been filed on 3.5.2000. Thereafter, the protest petition was preferred on 7.11.2000 but that was rejected by the learned Chief Judicial Magistrate on the ground that the final report had already been accepted on 3.11.1999 on the basis that there was no objection from the side of the applicant informant but the applicant informant himself supported for acceptance of the first information report. The learned Magistrate has decided merely on perusal of the signature that it appeared to be of the applicant informant without obtaining any expert report. Complaint was also pending in the same Court and on the same day without clubbing both the matter separately the order was passed rejecting the protest petition and in the complaint taking cognizance and summoning the accused opposite party No. 2 and others, i.e., on 20.2.2002. It is well-settled that when the protest petition was filed the Magistrate was required either to proceed as a State case. If, prima facie offence was disclosed or directed for further investigation or to proceed as a complaint case. The protest petition was not accepted on merit and without following the aforesaid procedure it was rejected. As far as the summoning order in the complaint case is concerned, from perusal of the complaint, in view of the allegation considering the statement under Sections 200 and 202, Cr. P.C. it cannot be said that prima facie no offence is made out and even it has not been challenged. Apart from that at this stage while taking cognizance and for issuing summons the trial court was not required to consider the matter as a mini trial to scrutinize the evidence. Since the protest petition was rejected hence the learned Chief Judicial Magistrate has rightly taken cognizance and issued summons in the complaint case filed by the revisionist. As far as the averments made in the complaint are concerned, that will be examined during trial after affording opportunity to the parties to adduce the evidence in accordance with law. This fact was brought to the notice of the revisional court that no application was filed from the side of the revisionist for acceptance of the final report and when complaint was filed on 3.5.2000 the revisionist was not aware regarding filing of the final report. The revisional court also failed in appreciating that the police report itself tried to conceal the correct fact and firstly it was informed that the investigation was in progress and final report had already been submitted. Hence, in view of the fact, the complaint was maintainable. Whether the alleged incident took place or not, firstly, it is clear that the S.I.S. has submitted charge-sheet on direction of the Superintendent of Police, Aligarh, the matter was investigated by the civil police and then final report was submitted and the same was accepted. The revisionist has right to file complaint and revisional court failed to consider that when the protest petition has already been rejected and even the revision filed against that order was also rejected then prima facie the right of revisionist of filing the complaint would be prejudiced, if the summoning order was set aside and the complaint was rejected on the ground that regarding the same incident the final report was accepted on application of the revisionist himself. Further, the final report was accepted merely on the ground that there was compromise in between the parties, though, it was disputed and even application has been filed for initiating proceeding under Section 340, Cr. P.C.