Neeraj vs State of U.P. and Another

Hon''ble S.C. Agarwal, J.—Vakalatnama filed by Sri Dharmendra Kumar Mishra on behalf of the complainant is taken on record.

Heard learned counsel for the petitioner and learned A.G.A. for the State as well as learned counsel for the complainant and perused the material available on record. This writ petition has been filed with a prayer to quash the order dated 29.4.2011 passed by A.C.J.M., Court No. 2, Aligarh in criminal case No. 284 of 2011 (Meera Devi v. Neeraj and Another) as well as order dated 2.11.2011 passed by Addl. Sessions Judge, Court No. 16, Aligarh in criminal revision No. 413 of 2011 (Neeraj and Another v. State of U.P. and Another) u/s 307 IPC, P.S. Gandhi Park, Aligarh.

In crime No. 58 of 2011 u/s 307 IPC, P.S. Gandhi Park, Distt. Aligarh, the police submitted final report. The complainant (respondent No. 2) filed protest petition. Learned Magistrate, by order dated 29.4.2011, rejected the final report, accepted the protest petition and summoned the petitioner Neeraj as well as co-accused Umesh to face trial u/s 307 IPC. It was further observed that the cognizance was being taken u/s 190 (1) (b) Cr.P.C. and the case shall proceed as a State case.

Learned counsel for the petitioner submits that alongwith the protest petition, affidavits of the complainant and the witnesses were submitted by the complainant and the Magistrate has also considered extraneous material while taking cognizance. The further submission is that the protest petition was accepted by the Magistrate, which impliedly means that extraneous material was considered.

Learned A.G.A. as well as learned counsel for the complainant supported the impugned orders and submitted that allowing the protest petition does not mean that extraneous material was considered. It was further submitted that cognizance has been taken on the basis of material available on the case diary and no extraneous material was considered by the Magistrate.

The purpose of filing a protest petition is to draw the attention of the Court towards the material available in the case diary indicating involvement of the accused in the crime. After a protest petition has been filed, the Magistrate has either to reject the protest petition and to accept the final report or if there is sufficient material in the case diary to proceed against the accused, in that event, the protest petition has to be allowed and the final report has to be rejected. Allowing the protest petition filed by the complainant does not mean that any extraneous material has been considered by the Magistrate. What material has been considered by the Magistrate at the time of taking cognizance, is to be inferred from the contents of the order passed by the Magistrate.

In the instant case, the Magistrate has relied upon the statement of the injured Hemant @ Sonu recorded u/s 161 Cr.P.C., which clearly indicates that he was fired at by Neeraj, the petitioner and role of exhortation was assigned to co accused Umesh. Another witness Anokhey Lal found Sonu in injured state. Learned Magistrate has also relied on the injury report of the victim.

A perusal of the impugned order clearly indicates that cognizance has been taken u/s 190 (1) (b) Cr.P.C. only on the basis of material available in the case diary and no extraneous material has been considered by the Magistrate. Revision preferred by the petitioner as well co-accused has been dismissed by learned Addl. Sessions Judge. I do not find any error or illegality in the order taking cognizance or in the revisional Court''s order. No ground for interference is made out. The writ petition is disposed of with a direction that if the petitioner surrenders before the Magistrate concerned within a period of three weeks from today and applies for bail, his prayer for bail be considered by the Courts below expeditiously, if possible, on the same day in accordance with law.