Ram Badal and Others vs State of U.P. and Another

S.C. Agarwal, J.—Heard Sri Dilip Srivastava, learned Counsel for the revisionist, learned A.G.A. for the State and perused the material available on record.

No. notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he feels so aggrieved.

This revision is directed against the order dated 21.5.2008 passed by Addl. Chief Judicial Magistrate, Court No. 11, Basti and order dated2.8.2010 passed by Addl. Chief Judicial Magistrate - II, Court No. 10,Basti in Complaint Case No. 2 of 2008 whereby, on the basis of final report submitted by the police and the protest petition filed by the complainant - opposite party No. 2, the protest petition was treated as complaint and by order dated 2.8.2010, the revisionists were summoned to face trial u/s 379, I.P.C.

Learned Counsel for the revisionists submitted that on the basis of F.I.R. lodged by complainant - opposite party No. 2, Crime No. 356 of2004 was registered against the revisionists u/s 379, I.P.C. at P.S. Cantt. After investigation, the police submitted final report. A notice was issued to the complainant to file protest petition. By order dated 21.5.2008, learned Magistrate accepted the final report, but treated the protest petition as a complaint to afford an opportunity to the complainant to lead evidence in support of his claim. The complainant examined himself u/s 200, Cr. P.C. and also examined Smt. Raj Patti as P.W. 1, Holi Prasad as P.W. 2 and Subhash as P.W. 3. The allegations against the revisionists are that in the grove of the complainant, one jaunt tree fell down due to storm. On 25.6.2004 at about 9: 00 p.m., all the three revisionists cut away five macula trees, one name tree and one aonla tree standing on the grove of complainant situated in plot No. 74 kha and carried the same along with the fallen tree of jamun by tractor - trolley and placed the same at a saw machine in Amari Bazar.

On the basis of statement of the complainant and the witnesses recorded under Sections 200 and 202, Cr. P.C., learned Magistrate summoned the accused to face trial u/s 379, I.P.C.

Learned Counsel for the revisionists submitted that when the final report was accepted by the Magistrate, he had No. jurisdiction to treat the protest petition as a complaint. The acceptance of final report implies that the result of the investigation was accepted by the Magistrate as correct. The next contention is that the statements of complainant and witnesses recorded under Sections 200 and 202, Cr. P.C. are at variance with their statements recorded by the Investigating Officer u/s 161, Cr. P.C. It was further submitted that other witnesses, whose statements have been recorded by the police during investigation, have clearly stated that the theft was not committed by the accused persons and the trees cut away by the revisionists were situated on the land of the revisionists themselves. Learned Counsel placed before me the statements of complainant and other witnesses recorded by the Investigating Officer to show that these statements do not prove the allegation of theft against the revisionists.

Learned A.G.A., however, supported the impugned order.

Learned Counsel for the revisionists placed reliance on Kallu and Ors. v. State of U.P. and Anr. LXIX 2010 ACC 780: 2010 (3) ACR 2510, wherein it was held that cognizance cannot be taken on the basis of affidavits filed in support of the protest petition. This decision does not help the revisionists at all. In the instant case, cognizance has been taken on the basis of protest petition filed by the complainant, which was treated as a complaint and the statements of complainant and his witnesses recorded under Sections 200 and 202, Cr.P.C.

In Harkesh and Ors. v. State of U.P. and Anr. XLIII 2001 ACC 720: 2001 (3) ACR 2009, this Court has held that at the time of passing an order u/s 190(1)(b) of the Code of Criminal Procedure, the Magistrate cannot take aid of external material except the material collected during investigation. This decision also does not help the revisionists, as the cognizance has not been taken u/s 190(1)(b), Cr. P.C., but has been taken u/s 190(1)(a), Cr.P.C. on the basis of complaint.

In Pakhandoo and Ors. v. State of U.P. and Anr. XLIII 2001 ACC 1096: 2001 (3) ACR 2541, a Division Bench of this Court held that when the Magistrate receives final report, the following four courses reopen to him and he may adopt any one of them as the facts and circumstances of the case may require:

he may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

he may take cognizance u/s 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

he may, without issuing process or dropping the proceedings decide to take cognizance u/s 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

Learned Magistrate did not take cognizance on the basis that final report submitted by the police and treated the protest petition as complaint and thereafter recorded the statements of the complainant u/s 200, Cr. P.C. and the witnesses were examined u/s 202, Cr. P.C. Considering the statements of the complainant and the witnesses, learned Magistrate decided to take cognizance and summoned the revisionists. Thus, the Magistrate has adopted one of the courses provided in the case of Pakhandoo and Ors. (supra).

Though the complainant himself is not an eye - witness, but the other persons examined by the complainant u/s 202, Cr. P.C. are eyewitnesses, who had seen the cutting of trees and taking away the trees by the revisionists from the field of the complainant. Whether the grove, from where the trees were cut, belongs to the complainant or the revisionists has to be decided by the trial court after evidence of the parties.

In view of aforesaid, impugned orders passed by the learned Magistrates treating the protest petition as a complaint as well as the order summoning the revisionists to face trial do not suffer from any illegality. Move over, order dated 22.4.2008 is not open to challenge as revision against the same is also barred by limitation.

In the facts and circumstances of the case, the revision is disposed of with a direction that if the revisionists surrender before the Magistrate concerned within a period of three weeks from today and apply for bail, their prayer for bail be considered by the courts below on the same day keeping in view a Full Bench decision of this Court in the case of Amrawati and Anr. v. State of U.P. 2004 (57) ALR 290: 2004 (3) ACR 2888, as affirmed by Hon''ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., 2009 (3) ADJ 322: 2009 (2) ACR 2063 (SC). For a period of three weeks from today, No. coercive steps shall be taken against the revisionists.