Back
2008(2) Crimes 455 (All.)
ALLAHABAD HIGH COURT
R.K. Rastogi, J.
Ramesh —Applicant
versus
State of U.P. —Opp. Party
Criminal Misc. Application No. 2749 of 2005
Decided on 16.11.2007
Counsel for the Parties:
For the Applicant:Rajul Bhargava, Advocate.
For the Opp. Party: A.G.A.
IMPORTANT POINT
Criminal Court has no power to review its judgment and it could rectify only clerical error.
Headnote:Criminal Procedure Code, 1973—Sections 200, 202 and 362—Final report submitted by police in a case registered for offences under Sections 147, 148, 149, 307, 323, 504 and 506 Indian Penal Code—Complainant petitioner on being noticed by Magistrate filed a protest application—Magistrate treating protest application as complaint directed to proceed with complaint for inquiry and statement of complainant and his witnesses were recorded—Successor Magistrate by impugned order accepted the final report and held that protest petition did not contain full particulars of incident and did not come within definition of complaint—Sessions Court upheld order in revision —Protect petition gave description of incident in brief and observation of Magistrate was erroneous—Magistrate did not have jurisdiction to review the order—Impugned order was liable to be set aside. (Paras 5 to 8)
Result: Application allowed.
JUDGMENT
R.K. Rastogi, J.—This is an application under Section 482, Cr.P.C. to quash the order dated 30.4.2004 passed by the Judicial Magistrate, Mathura in Complaint Case No.105 of 2003. Ramesh v. Dibban and others, and the order dated 28.10.2004 passed by the Additional District and Sessions Judge, Court No.1. Mathura in Criminal Revision No. 360/04. Ramesh v. State.
2. The facts relevant for disposal of this application are that the applicant had moved an application before the S.S.P. Mathura on 11.2.2001 with these allegations that he was resident of village Semra Police Station Shergarh District Mathura and on the above date at about 9 a.m. complainant’s real brother Mukesh and cousin brothers Pramod and Mahesh had gone to Shyam Kund to take bath. The accused Dibban, Prem Chandra, Hukam, Sunil, Raju, Dalchand and Chetram, who had pistols, guns and lathis with them assaulted Pramod, Mukesh and Mahesh. The accused abused them and stated that they would not spare Pramod, Mukesh and Mahesh and on exhortation of Hukam, Sunil, Chetram, Dibban and Raju fired at them with an intent to kill them. The fire done by Sunil hit Mukesh, that done by Chetram hit Pramod but fires done by Raju and Prem Chand did not hit anyone. Dal Chand gave a lathi blow to Mahesh. Upon noise Shivji, Durga, Bhajan Lal, Vinod etc. of the same village reached there, who witnessed the incident and protected Pramod, Mukesh and Mahesh. The accused persons went away towards jungle threatening to kill them. Ramesh was taking the injured to the police station but the accused had obstructed the way. Then he took them to Methodist Hospital at Mathura where their treatment was going on. It was, therefore, prayed that action should be taken and the station officer of the police station should be directed to register a case against the accused persons.
3. On the basis of the order passed by the S.S.P. Mathura on this application, a case was registered against the accused persons at police station Shergarh as case Crime No. 14-A/2001 under Sections 147, 148, 149, 307, 323, 504 and 506, I.P.C. and it was investigated.
4. According to the injury report of Pramod Kumar he had a fire-arm injury to his chest and left shoulder. Mahesh had head injury. Mukesh had gun shot injury on his chest. The police, however, after investigation submitted a final report in the case and against that final report complainant filed protest petition. On that protest petition Sri S.N. Saroj, Judicial Magistrate, Mathura passed an order on 28.10.2003 for treating it as complaint and he fixed a date for recording statements of the complainant and his witnesses under Sections 200 and 202, Criminal Procedure Code. Accordingly the statements of the complainant and his witnesses were recorded. Thereafter the case was fixed for order. On 30.4.2004 Sri Amarnath Kushwaha, who was at that time posted as Judicial Magistrate, Mathura passed an order for accepting final report and rejecting the protest petition. He further observed in his order that his predecessor had passed an erroneous order for registering the protest petition as a complaint because the protest petition did not contain full particulars of the incident and it did not come within the definition of the word “complaint”. Aggrieved with that order Ramesh filed Criminal Revision No. 360 of 2004 before the Sessions Judge, Mathura, which was dismissed by Sri A.K. Mathur, Additional Sessions Judge, Court No.1, Mathura vide his order dated 28.10.2004. Aggrieved with both these orders the complainant has filed this application under Section 482, Criminal Procedure Code.
5. I have heard learned counsel for the applicant as well as the learned A.G.A. for the State.
The learned counsel for the applicant cited before me a Division Bench ruling of this Court in Pakhando and others v. State of U.P. and another1, in which it has been held that after filing of the final report by the police, the Magistrate has got jurisdiction to treat the protest petiti
