IMPORTANT POINTS
(1) In exercising revisional power, Sessions Court cannot quash cognizance and summoning order passed by Magistrate.
(2) Plea of alibi of accused shall be examined only during trial at stage of defence.

JUDGMENT

Shamim Ahmed, J.—Heard Sri Anil Bhushan, learned senior counsel assisted by Sri Siddharth kumar Mishra, learned counsel for the revisionist and Sri Suresh Bahadur Singh, learned A.G.A. for the State-opposite party No.1. Even in the revised list none appeared on behalf of the opposite party nos.2 to 4 nor any counter affidavit has been filed on their behalf, this court proceed to hear the matter finally.

2. This revision is directed against the order dated 26.07.2001 passed by learned District and Sessions Judge, Kannauj by which he has accepted the final report submitted by the Investigating Officer and set aside the order dated 25.04.2001 passed by the Judicial Magistrate, Chhibramau by which he has summoned the opposite party no.2 under Section 379 I.P.C.

3. The brief facts of the present case is that the revisionist has constructed a house in the property in dispute and also there are 32 trees of Mango and one tree of Neem. On 06.09.2000 respondent No.2 along with some unsocial elements has broken the lock of the house of the revisionist and took possession on the same and also take away the goods of Rs. 8000/-. The revisionist tried to lodge F.I.R. by approaching the concerned Police Station and by sending Fax message to the Superintendent of Police, but no F.I.R. has not been lodged. Thereafter, revisionist filed an application under Section 156(3) Cr.P.C. before the Judicial Magistrate on 02.12.2000 and on the application of the revisionist on the same day the Judicial Magistrate, First Class has passed an order directing the Police Station of concerned Police to lodge an F.I.R. and inform the Court. Pursuant to the order passed by the Judicial Magistrate an F.I.R. has been lodged by the police on 07.12.2000, under Sections 147, 504, 506, 427, 448, 379 I.P.C. and the same was registered as Case Crime No. 454 of 2000 and after investigation the Investigating Officer in a mechanical manner submitted final report in favour of the opposite party no.2 without considering the evidence on record.

The revisionist has again approached to the Police Authority for again re-investigation and also filed protest petition before the Judicial Magistrate and on the protest petition of the revisionist the learned Magistrate vide order dated 25.04.2001 have issued summons to the opposite party no.2 under Section 379 I.P.C.

4. Feeling aggrieved by the order dated 25.04.2001 the opposite party no.2 filed a criminal revision before the learned District and Sessions Judge, Kannauj and the revisional court vide impugned order dated 26.07.2021 set aside the summoning order dated 25.04.2001 and also accepted the final report without considering the evidence on record.

5. After hearing the learned counsel for the revisionist and learned A.G.A. for the State and on perusal of the record it reveals that the F.I.R. was registered by the revisionist against opposite party no. 2 under Sections 147, 504, 506, 427, 448, 379 I.P.C. and after investigating final report was submitted by the Investigating Officer in a mechanical manner. Thereafter, the learned Magistrate after considering the protest petition and perusing the record summoned the accused under Section 379 Cr.P.C. vide order dated 25.04.2001, expressing his judicial power.

6. In Gangadhar Janardan Mhatre vs. State of Maharashtra and others 2004 (7) SCC 768, the Court reiterating above view said as under:—

“The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 109(1)(b) and direct the issue of process to the accused.” (emphasis added)”

7. In Pakhando and others Vs. State of U.P. reported in 2001 SCC Online All 967 a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or a