Court No. - 52 Case :- CRIMINAL REVISION No. - 2054 of 1998 Petitioner :- Rafat Munir Khan & Others Respondent :- State Of U.P. & Another Petitioner Counsel :- A.B.L.Gour Respondent Counsel :- Govt.Advocate,Ashok Kumar Singh Hon'ble Arvind Kumar Tripathi,J.
List revised.
The present criminal revision has been filed against the order dated
7.11.1998 passed by Special Judge (D.A.A.), Etah in S.S.T. No. 100 of
1998.
Heard learned counsel for the revisionist, learned AGA for the State and
perused the record.
Learned counsel for the revisionist submitted that on the basis of false
allegation first information report was lodged by opposite party no.2.
An FIR was also lodged by applicant no.2 under Section 406, 504, 506
IPC against complainant. Complainant opposite party no.2 was involved
in a murder case in which applicant no.1 was complainant. After
investigation final report was submitted by the Investigating Officer,
hence on the basis of false allegation first information report was
lodged. Thereafter, protest petition was filed by the complainant along-
with affidavit. The Magistrate, concerned, without considering the
material submitted along-with case diary merely on the basis of
affidavit rejected the final report and summoned the applicant under
Section 395, 397 IPC by impugned order dated 7.11.1998. He further
submitted that if the learned Special Judge (D.A.A.) was not satisfied
with the investigation and the material then there should have been
direction for further investigation or should have proceeded as
complaint case on the protest petition. However, lower court proceeded
as State case.
The aforesaid prayer was opposed by learned AGA on the ground that
offence was disclosed hence learned Special Judge has rightly
summoned the applicant. Correctness of the same has to be examined
during trial on the basis of evidence.
From perusal of impugned order, it appears that only considering the
affidavit filed along-with protest petition by the complainant applicant
was summoned.
Since the protest petition was rejected and applicant was summoned
considering the additional material hence the impugned order dated
7.11.1998 passed by Special Judge (D.A.A.), Etah in S.S.T. No.100 of
1998 is liable to be set aside. Accordingly, aforesaid order is hereby set
aside.
The criminal revision is allowed. Interim order dated 9.12.1998 is
hereby discharged.
However, trial court will pass fresh order in accordance with law.
Order Date :- 29.7.2010
Pramod