The Allahabad High Court has quashed the order passed by the Additional Civil Judge/Judicial Magistrate, Mathura on January 5, 2022, rejecting the protest application due to non-filing of charge sheet in the police report, terming it as illegal.
A Single Bench of Justice Rajeev Misra passed this order while hearing an application under section 482 filed by Madhav Singh.
Challenge in the application under Section 482 CrPC is to the order dated 05.01.2022 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Mathura in Case Crime No 229 of 2019 (State Vs Mahendra Pratap and Others) whereby the protest petition filed by applicant against the police report submitted by Investigating Officer has been rejected as well as the order dated 29.03.2022 passed by First Additional Sessions Judge, Mathura in Criminal Revision No Nil of 2022 (Madhav Singh Vs Bishan Singh and Others) whereby aforementioned criminal revision arising out of the order dated 05.01.2022 has also been dismissed.
The Court noted that,
Record shows that applicant lodged an FIR dated 29.11.2019 which was registered as Case under Sections 420, 467, 468, 469, 471, 167, 168, 120B IPC, Police Station-Magorra, District-Mathura. In the aforesaid FIR, 3 persons namely Mahendra Pratap Singh @ Guddu, Bisan Singh and Pritam Singh have been nominated as named accused.
Investigating Officer upon completion of statutory investigation of concerned case crime number, submitted the police report (charge-sheet) in terms of Section 173(2) CrPC whereby 3 persons namely Mahendra Pratap Singh @ Guddu, Kela Devi @ Kailashi and Ghamandi were charge-sheeted. However, 2 of the named accused namely Bisan Singh and Pritam Singh were exculpated.
Subsequently, applicant filed a protest petition i.e application dated 02.02.2021 (Paper No 5Ba)in the light of the judgement of Supreme Court in Gangadhar Janardan Mhatre Vs State of Maharashtra, (2004) 7 SCC 768 alleging therein that since complicity of 2 of the named accused namely Bisan Singh and Pritam Singh but since exculpated is also established in the crime in question, therefore, they be also summoned to face trial. The protest petition filed by applicant was rejected by court below on the finding that court below does not find it proper to summon named but not charge-sheeted accused.
Counsel for applicant submitted that the order impugned in application is manifestly illegal and without jurisdiction. While exercising jurisdiction under Section 190(1) (b) CrPC, the concerned court is not bound by the opinion expressed by the Investigating Officer.
Once a protest petition is filed by the first informant against the charge-sheet in terms of the judgement of Supreme Court Gangadhar Janardan Mhatre (Supra) then concerned court is duty bound to examine the papers accompanying the police report and thereafter, reach at an own independent conclusion as to whether, the complicity of other named/not named accused/persons is established in the crime or not. At this juncture, the court need not wait for the proceedings at the stage of Section 319 CrPC.
It is thus contended that when the order impugned is examined in the light of the above, the finding recorded by the Magistrate for rejecting the protest petition filed by applicant is not only illegal, erroneous but also perverse. As a result, the order impugned dated 05.01.2022 cannot be sustained and therefore liable to be quashed by the Court.
Per contra, the A.G.A has opposed the application. However, he could not dislodge the factual and legal submissions urged by the counsel for the applicant at this stage.
“Having heard, the counsel for applicant, the A.G.A for State and upon perusal of record, the Court finds that the protest petition filed by applicant against police report (charge sheet) submitted by Investigating Officer under Section 173(2) CrPC has been rejected on a non legal ground. Concerned Magistrate has failed to exercise the jurisdiction vested in him diligently. Impugned orders thus suffer from a jurisdictional error. Resultantly, order impugned cannot be sustained in law and fact and is liable to be quashed”, the Court observed while allowing the application.
“The impugned 05.01.2022 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Mathura, is hereby quashed.
The Additional Civil Judge (Junior Division)/Judicial Magistrate, Mathura shall pass a fresh order in the light of the observations made herein above within a period of 1 month from the date of production of a certified copy of the order”, the Court ordered.