The Magistrate has the discretion to defer from the opinion of the Investigating Officer and make decisions based on the material on record, especially at the pre-cognizance stage.

JUDGMENT :

1. Heard Shri Prem Shankar Mishra, learned counsel for the revisionists; Shri Bhuvnesh Kumar Singh, learned counsel for opposite party no.2 and learned A.G.A. for the State. Perused the record.

2. The instant criminal revision is being filed by the revisionists Yunus, Kamil and Alim, assailing the legality and validity of impugned order dated 01.02.2021 passed by the Judicial Magistrate, Chandpur, Bijnor in Criminal Case No.391 of 2019 (State vs. Kamil and others), arising out of Case Crime No.223 of 2018, u/s 323, 324, 325, 504, 506 I.P.C., P.S.-Shivala Kala, District-Bijnor, whereby learned Magistrate has taken cognizance against the revisionists for the offence u/s 323, 324, 326, 504, 506 I.P.C., while responding to the application dated 31.5.2019 filed by the prosecution at pre-cognizance stage.

3. Long and short of the submissions advanced by learned counsel for the revisionists is that on 21.11.2018 a F.I.R. was got registered for the incident said to have taken place on 9.9.2018 by Mohd. Akram u/s 307, 323, 504, 506 I.P.C. against Kamil, Alim and one unknown person. This F.I.R. was registered routed through an Application u/s 156(3) of Cr.P.C. with the allegation that the contesting parties were political opponents and on this score they were nurturing an inimical relationship. On 9.9.2018 around 06.30 in the evening when the informant was coming to his home, in the way, near a culvert, he was ambushed by Kamil, Alim and one unknown armed with tabbal and knife. They started hurling filthy abuses and thereafter assaulted upon him. Alim was armed with tabbal, who had given a deadly blow over his head, whereas Kamil had assaulted by knife over his head and unknown person had brutally assaulted with lathi-danda. This incident was witnessed by co-villagers and on making challenge by them, the assailants ran away giving threatening to kill the informant. Mohd. Akram who is the informant, is the main injured and he was put for medical examination. From the medical examination report it transpires that the injured has sustained six injured over his person, including the incised wounds and contused swelling. The injured was referred for X-Ray of skull and chest. Supplementary report indicates that there is head injury over the injured and C.T. scan of the head was advised. C.T. scan report dated 10.9.2018 shows (i) multiple depressed fractures of frontal bone on left side, (ii) fractures of left zygomatic and left orbit and (iii) multiple small hemorrhagic contusions at left frontal lobe. In the opinion of doctor, head injuries are grievous in nature and in the X-Ray report also multiple depression of fracture is observed. After recording the statements of the injured and the doctor, the Investigating Officer of the case, it appears that in order to oblige the accused, changed the texture of the case by dropping Section 307 of I.P.C. from the array of sections mentioned in the F.I.R. and submitted charge-sheet dated 13.2.2019 against the revisionists u/s 323, 324, 325, 504, 506 of I.P.C.

4. Stunned and dissatisfied by this report u/s 173(2) Cr.P.C. submitted by the I.O., the informant moved an application on 31.5.2019 challenging the opinion of the I.O. that keeping in view the gravity, seat and nature of injuries, instead of Sections 323, 324, 325, 504, 506 of I.P.C., the I.O. of the case ought to have submitted charge sheet inserting Sections 307, 308 of I.P.C. among other sections as per prosecution case. It is not out of place to mention here that the application on behalf of prosecution was instituted at pre-cognizace stage.

5. At the stage of taking cognizance, learned Magistrate after taking into account the material collected by the I.O. during investigation and the objection raised by the informant vide application dated 31.5.2019, have passed the present impugned order dated 01.2.2021 (cognizance order) whereby he has taken cognizance of the offences u/s 323, 324, 326, 504, 506 I.P.C.

6. Learned counsel for the re