ORDER :

(Rajeev Singh, J.)

1. Counter affidavit filed by learned A.G.A. is taken on record.

2. Heard learned counsel for the revisionist as well as learned A.G.A. and learned counsel for the opposite party No. 2, and perused the record.

3. The present revision has been filed with the prayer to set aside the impugned order dated 05.07.2021 passed by learned Chief Judicial Magistrate, Auraiya in Case Crime No. 90 of 2017, under Section 307 I.P.C., P.S. Phaphund, District Auraiya (Ram Prakash vs. Sumit Narayan & Others), and remand the case for reconsideration.

4. Learned counsel for the revisionist has submitted that the F.I.R. was lodged by the applicant. Thereafter, investigation was conducted by the Investigating Officer and with the collusion of opposite party No. 2, final report was submitted ignoring the injuries and other evidences. Thereafter, protest petition was filed and the C.J.M., Auraiya passed by the impugned order in which it was categorically observed that the Investigating Officer submitted the charge sheet ignoring the evidence available on the case diary. He further submitted that the final report No. 90 of 2019 dated 31.08.2019 was rejected by the court below and observed that there is sufficient ground for taking cognizance under Section 190 Cr.P.C., but in the operative part of the order, order was passed for registering a complaint case and the complainant was directed to appear for recording his statement under Section 200 Cr.P.C.

5. Learned counsel for the revisionist has further submitted that learned C.J.M. has observed that there is ample evident in the case diary for taking cognizance, then it was obligatory on the part to take cognizance in place of passing the order for registering the case as a complaint case. Therefore, kind indulgence of this Court is necessary.

6. Learned A.G.A. as well as learned counsel for the opposite party No. 2 vehemently opposed the prayer of the revisionist and submitted that there is no illegality in the order passed by the court below and the revisionist may appear before the court below after recording his statement under Section 200 Cr.P.C., but they do not dispute this fact that court below has observed that the Investigating Officer ignored the evidence available in the case diary and filed final report which was set aside, and it was also observed that there are sufficient evidence for taking cognizance.

7. Considering the arguments of learned counsel for the revisionist as well as learned counsel for the opposite party No. 2 and learned A.G.A., and going through the records, it is evident that after investigation, final report was filed by the Investigating Officer and on the protest petition, the order was passed by the court below in which it was observed that there is ample evidence available in the case diary for taking cognizance, but the Investigating Officer submitted the final report ignoring the evidences and final report was rejected by the court below on the said ground, in such circumstances, it is a fit case for interference of this Court.

8. In view of the above and the observation made by the court below in the impugned order itself, the revision is allowed and the order dated 05.07.2021 passed by learned Chief Judicial Magistrate, Auraiya in Case Crime No. 90 of 2017, under Section 307 I.P.C., P.S. Phaphund, District Auraiya (Ram Prakash vs. Sumit Narayan & Others) is set aside with a direction to Chief Judicial Magistrate, Auraiya for passing fresh order, after hearing the learned counsel for the complainant forthwith.