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Sri Narayan Ojha vs State Of U.P. And 7 Others on 3 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 79

Case :- APPLICATION U/S 482 No. – 12747 of 2018

Applicant :- Sri Narayan Ojha

Opposite Party :- State Of U.P. And 7 Others

Counsel for Applicant :- Neeraj Singh

Counsel for Opposite Party :- G.A.,Pavan Kumar Srivastava,Pramod Kumar Sahani

Hon’ble Harsh Kumar,J.

Heard Sri Neeraj Singh, learned counsel for applicant, Sri Pavan Kumar Srivastava, learned counsel for the private-opposite parties learned A.G.A. for the State and perused the record.

This application under Section 482 Cr.P.C. has been filed for quashing the judgment and order dated 8.3.2018 passed by Additional Sessions Judge, Court No.10, Gorakhpur in Criminal Revision No.68 of 2017 (Km. Shweta Ojha Vs. State of U.P. and others).

Learned counsel for applicant contends that applicant has been falsely implicated in F.I.R. lodged by opposite party no.2 through application under section 156(3) Cr.P.C., moved after inordinate delay of around six months of incident; that as per averments made in F.I.R. Rahul Ojha, the son of applicant enticed away first informant/victim on 22.6.2015 and repeatedly committed rape on her; that the real fact is that opposite party no.2 was in love with Rahul Ojha, the son of applicant, which was not acceptable to her family members and so after calling Rahul Ojha at home he was beaten by family members of opposite party no.2 and opposite party no.2 feeling annoyed of her family members left home and reached to Rahul Ojha, who eloped and were caught at Haridwar after 05 days, upon which family members of opposite party no.2 threatened the applicant and his family members of dire consequences followed by kidnapping and death of Rahul Ojha; that in this respect, applicant lodged F.I.R. against opposite party nos.3 to 5 and their associates for offences under section 364 IPC on 8.8.2015; that actually it is a case of honour killing of Rahul by family members of opposite party no.2; that in order to save their skins in the case of offence under section 364 IPC, opposite party no.2 under influence of her family members moved a false application under section 156(3) Cr.P.C. for registering a F.I.R. against applicant and others, upon which F.I.R. under sections 366, 368, 342, 504, 506 and 120-B IPC was lodged against applicant, his son Rahul Ojha, deceased and others and the Investigating Officer upon investigation submitted final report under above sections as well as under section 376 IPC also; that against the final report, opposite party no.2 filed protest petition and learned Magistrate after hearing her vide order dated 17.2.2017 rejecting the protest petition, accepted final report; that against the order of Magistrate, accepting final report, rejecting the protest petition opposite party no.2 filed Criminal Revision No.68 of 2017 before Sessions Judge, Gorakhpur, which was allowed by Additional Sessions Judge, Court No.10, Gorakhpur by impugned order remitting the matter back to Magistrate for disposal in the light of observations made in the body of judgment wherein the Revisional Court has held that the Magistrate ought to have treated the protest petition as complaint and should have decided the matter after following the procedure provided under sections 200 and 202 Cr.P.C.; that the impugned order passed by the Revisional Court is wrong on facts and law; that it is settled principle of law that the Revisional Court must not interfere with the order passed by Magistrate in cases of disposal of protest petition on final report unless there is any perversity; that there was no illegality or perversity in order of Magistrate dated 17.2.2017; that if the impugned order passed by Revisional Court is not set aside/quashed, the applicant will suffer irreparably and it will amount to abuse of process of Court.

In support of his arguments, learned counsel for applicant has paid reliance on a decision of Apex Court in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke (S.C.), 2015 (89) ACC 309.

Per contra, learned AGA and learned counsel for private-opposite parties supported the impugned order passed by Additional Sessions Judge and contended that learned Magistrate in its order rejecting protest petition and accepting final report has taken into consideration certain facts, which were not on record and so committed manifest error of fact and law in passing order dated 17.2.2017 rejecting protest petition and accepting final report; that learned Magistrate had acted wrongly and perversely in ignoring the statements of prosecutrix under sections 161 and 164 Cr.P.C.; that it is settled principle of law that the Magistrate may not take into consideration any foreign material, which is not on record and by taking into consideration any material, beyond case diary, may not base disposal of final report on such external consideration; that it is wrong to say that family members of opposite party no.2 either kidnapped or caused death of Rahul Ojha; that the question of honour killing of Rahul by opposite parties does not arise, because there is no whisper of any wedding knot between Rahul Ojha and opposite party no.2; that it is also wrong to say that opposite party no.2 was having love affair with Rahul Ojha and eloped with him; that only by following the procedure provided under Chapter XV of Cr.P.C., the Magistrate may dispose of the final report/protest petition by an appropriate order, which is not likely to cause any harm to applicant; that there are other accused also and application by one of them under section 482 Cr.P.C., has been moved with mala fide intention to delay the proceedings and is liable to be dismissed.

Upon hearing parties’ counsel and perusal of record as well as version and counter version by two parties, I find that it is settled principle of law that upon submission of final report, the Trial Court/Magistrate may either (i) accept final report (ii) if finds sufficient material on case diary may reject final report and take cognizance outrightly, (iii) may order for further investigation and (iv) may treat protest petition, as complaint and dispose of final report by following procedure provided under Chapter XV of Cr.P.C.

Upon perusal of order passed by Magistrate and the Revisional Court it appears that in passing order dated 17.2.2017, the Magistrate has taken into consideration certain facts, which were not on case diary and if the Magistrate passes any order by taking any fact into his consideration, which is not on case diary, any order taking cognizance or refusing to take cognizance, both will be equally wrong. The Court may not go beyond the material on case diary at the time of considering acceptance of final report and if it is brought before him that Investigating Officer did not take into consideration any evidence, it will have to follow procedure provided under Chapter XV of Cr.P.C. for a complaint case. The apprehension of applicant that in case the Magistrate will follow procedure provided under Chapter XV of Cr.P.C., accused will be summoned, is baseless because upon following procedure provided under Chapter XV of Cr.P.C., for complaint case, the Court may either pass an order rejecting complaint under section 203 Cr.P.C. and only in case, it finds a prima facie case then summons may be issued under provisions of Section 204 Cr.P.C.

In view of discussions made above, I have come to the conclusion that there is no illegality, irregularity, incorrectness or impropriety in the impugned order and learned counsel for applicant has failed to show that there is any abuse of process of court or likelihood of miscarriage of justice for prevention of which the exercise of inherent powers by this Court may be required. The application is devoid of merits and is liable to be dismissed.

The application u/s 482 Cr.P.C. is accordingly dismissed.

Order Date :- 3.2.2020/Tamang

 

 

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