Mishwah Aziz vs State of U.P.

Ravindra Singh, J.—Heard the learned Counsel for the applicant and the learned A.G.A.

This application has been filed with a prayer to quash the order dated 18.1.2008, passed by the learned M.M. IV, Kanpur Nagar in Misc. Case No. 365 of 2007, arising out of final report submitted in Case Crime No. 69 of 2006 under Sections 147, 148, 323, 504, 506 and 307, I.P.C., P.S. Maharajpur district Kanpur Nagar whereby the learned Magistrate concerned has rejected the protest petition and accepted the final report.

It is contended by the learned Counsel for the applicant that in the present case three persons have sustained injuries in which one of the injured (the applicant) had sustained gun shot injury, their statement have been recorded during investigation, who supported the prosecution story, the Investigating Officer have collected the medical examination reports also but on account of extraneous consideration the Investigating Officer has submitted the final report, the same has been illegally accepted by the learned Magistrate concerned on 18.1.2008.

It is submitted by the learned A.G.A., that the impugned order dated 18.1.2008 is illegal because the impugned order has been passed ignoring the statements of the witnesses including the injured witness. According to the statements of eye witnesses and medical examination reports, prima facie offence is made out, the specific allegations have been made against the applicant. The learned Magistrate concerned has deviated from the established procedure in accepting the final report because at this stage it has to be considered that on the basis of the material collected by the Investigating Officer during investigations, prima facie any offence is made out or not, it was not the stage of evaluating the material for the purpose of ascertaining the truth. The impugned order is illegal which is liable to be quashed.

From the perusal of the record, it appears that in the present case three persons have sustained injuries who supported the prosecution story, their medical examination reports have been collected by the Investigating Officer and without any proper reason the final report has been submitted. The learned Magistrate has committed manifest error of law by ignoring the statements of the injured witnesses and the medical examination reports. The learned Magistrate concerned has tried to analyze the genuineness of the material collected by the Investigating Officer, to ascertain the truth also, as the learned Magistrate concerned was deciding the trial by way of appreciating the evidence. At the stage of considering the police report (final report), the meticulous analysis of the material collected by the Investigating Officer for the purpose of ascertaining the truth or genuineness, is not legally permitted, as in the present case the learned Magistrate concerned has done meticulous analysis of the material collected by the Investigating Officer and recorded the conclusions also, whereas the main consideration is to find out whether on the basis of the material collected by Investigating Officer prima facie offence is made out or not, if it is made out the final report be rejected and cognizance be taken. In the present case on the basis of the material collected by the Investigating Officer prima facie offence is made out. The learned Magistrate concerned passed the impugned order by ignoring settled principles of law and passed an illegal order dated 18.1.2008, therefore, the same is hereby set aside. However, the learned Magistrate shall pass a fresh order on the police report submitted by the Investigating Officer in accordance with provisions of law.

With the above direction this application is finally disposed of.