Ravindra Singh, J.@mdashThis application has been filed by the applicant Sameer Raza with a prayer that further proceedings of Case No. 97/11
of 2005 u/s 307, I.P.C. including the order dated 7.4.2005 passed by the 1st A.C.J.M. Rampur may be quashed.
2. Heard Sri I. M. Khan, learned Counsel for the applicant, learned A.G.A. for the State of U. P. and Sri Shahabuddin and Sri Vijay Bahadur
Singh Shivhare, learned Counsel for O.P. M/No. 2.
3. The facts of the case in brief are that an F.I.R. has been lodged by O.P. No. 2 against the applicant and other co-accused persons on
12.3.2005 at 7.15 p.m. in case Crime No. 127 of 2005 u/s 307, I.P.C. P.S. Ganj district Rampur, mentioning therein that O.P. No. 2 has
purchased a grove from the applicant about 6 month prior the date of the F.I.R. and an amount of Rs. 40,000 was paid by O.P. No. 2 to the
applicant as an advance but the applicant was not permitting him to cut the trees of the grove and he was not refunding the amount to O.P. No. 2
but on the day of the alleged occurrence O.P. No. 2 has demanded the amount which has been paid by him to the applicant but the same was not
paid and the applicant had extended threat. On the same day at about 7.15 p.m. the applicant discharged the shot by country made pistol which hit
on the back of O.P. No. 2. After causing injury the applicant ran away towards Civil Lines side. The O.P. No. 2 was medically examined by the
Medical Officer, District Hospital, Rampur on 12.3.2005 at about 8.15 p.m. He has received two injuries in which injury No. 1 was multiple
firearm wound on the back of the chest and injury No. 2 was abraded contusion on the back of the chest. After lodging the F.I.R. the matter was
investigated by the Investigating Officer who came to the conclusion that the applicant was falsely implicated. Therefore, final report dated
13.3.2005 was submitted by the Investigating Officer in the court of learned A.C.J.M. 1st Rampur. The learned Magistrate concerned issued
notices to O.P. No. 2 to hear him on that final report. Thereafter, O.P. No. 2 filed a protest petition on 7.4.2005 in the court of 1st A.C.J.M. with
a prayer that final report may be rejected and the accused may be summoned to face the trial for the offence punishable u/s 307, I.P.C. and the
same was allowed by the learned 1st A.C.J.M. Rampur on. 7.4.2005. The learned Magistrate rejected the final report after taking cognizance and
the applicant has been summoned to face the trial for the offence punishable u/s 307, I.P.C. Being aggrieved by the order dated 7.4.2005 the
applicant filed this application with a prayer that the order dated 7.4.2005 may be quashed and the Criminal Proceedings pending in the court of
learned 1st A.C.J.M. Rampur may also be quashed.
4. It is contended by the learned Counsel for the applicant :
1. That after registration of the F.I.R. the statement of Achchan Mehraj O.P. No. 2, Wasi Khan, Haroon Khan, Babbu Khan, Nabbu Khan, Siraj
Khan, Shahnawaz Miyan and Sami Ullah Khan were recorded by the Investigating Officer u/s 161, Code of Criminal Procedure According to
their statements the applicant was not present at the time of alleged occurrence. The witnesses have not supported the prosecution story.
Therefore, the Investigating Officer has submitted the final report dated 13.3.2005. The investigation was properly done by the Investigating
Officer who has rightly come to the conclusion that the applicant has not committed the alleged offence.
2. That even on the basis of the F.I.R. and the statement of the witnesses recorded u/s 161, Code of Criminal Procedure prima facie a case u/s
307, I.P.C. is not made out against the applicant.
3. That the impugned order dated 7.4.2005 passed by the 1st A.C.J.M. Rampur is illegal because the learned Magistrate has not considered the
statement of the witnesses recorded by the Investigating Officer but in a mechanical manner and without showing proper reasons final report has
been rejected and the learned Magistrate has taken cognizance and the applicant has been summoned to face the trial u/s 307, I.P.C.
4. That after taking cognizance, the case has been treated as a complaint case but the procedure prescribed of a complaint case has not been
followed because the protest petition filed by O.P. No. 2 has not been treated as a complaint. No statement under Sections 200 and 202, Cr.P.C.
has been recorded even then the case has been marked as a complaint case Achchan Mehraj v. Sameer Raza, and not as State v. Sameer Raza.
5. That the applicant has been falsely implicated by O.P. No. 2 with the intention to prevent him from getting the passport so that he may not go to
gulf countries to earn his livelihood.
6. That the proceedings have been initiated by O.P. No. 2 with ulterior motive and the learned Magistrate has also illegally taken cognizance by
passing the impugned order dated 7.4.2005 which is liable to be set aside and the entire proceedings pending against the applicant are also liable
to be quashed.
5. In reply to the above contentions advanced by the learned Counsel for the applicant the learned A.G.A. and the learned Counsel for the
complainant submit :
1. That in the present case F.I.R. has been lodged by O.P. No. 2 against the applicant on 12.3.2005 at 7.50 p.m. in respect of the incident which
had occurred on 12.3.2005 at about 7.15 p.m. In the said incident the applicant has fired at O.P. No. 2 by a country made pistol with intention to
kill him, consequently, O.P. No. 2 received two injuries. Injury No. 1 was multiple fire arm wound injury on the back of the chest and injury No. 2
was abraded contusion on the back of right side of the chest. The first informant, O.P. No. 2 was medically examined and he has fully supported
the prosecution story in his statement u/s 161, Code of Criminal Procedure The other witnesses have also fully supported the prosecution story in
their statement recorded u/s 161, Code of Criminal Procedure Surprisingly, the Investigating Officer recorded the statement of such person who
were on applicant side and relied upon their statement. The Investigating Officer submitted the final report. The final report submitted by the
Investigating Officer was not proper because on the basis of the allegation made against the applicant prima facie offence u/s 302, I.P.C. was
made out and O.P. No. 2 filed a protest petition. Thereafter the learned 1st A.C.J.M. Rampur perused the case diary and other material collected
by the Investigating Officer during investigation and after considering the same a conclusion was drawn that final report was illegally submitted and
on the basis of the material recorded by the Investigating Officer a prima facie case u/s 307, I.P.C. was made out. Therefore, the learned
Magistrate concerned rejected the final report and took cognizance of this case and summoned the applicant to face the trial u/s 307, I.P.C. vide
impugned order dated 7.4.2005. The impugned order dated 7.4.2005 is not suffering from any illegality, it is a perfect order and the learned
Magistrate has not treated the present case as a complaint case and no such order has been passed but in the head note of the case Achchan alias
Mehraj v. Sameer Raza, has been mentioned only on the basis of the protest petition filed by O.P. No. 2.
2. That there is no illegality in the impugned order and there is no ground to quash the proceedings in the court of learned 1st A.C.J.M., Rampur
and the ground of mala fide taken by the applicant has no substance. Therefore, the present application may be dismissed.
6. Considering the facts and circumstances of the case and the submissions made by the learned Counsel for the applicant and the learned A.G.A,
and the learned Counsel for O.P. No. 2 and from a perusal of the record and the impugned order dated 7.4.2005 it appears that in the present
case on the basis of the F.I.R., medical examination report and the statement of the first informant and other witnesses, prima facie offence u/s 307,
I.P.C. is made out but the Investigating Officer committed manifest error by giving importance to the witnesses of the defence and submitting final
report, the learned Magistrate also did not commit any mistake in rejecting the final report and taking cognizance against the applicant by
summoning him to face the trial for the offence punishable u/s 307, I.P.C. The learned Magistrate has not passed any order that this case as a
complaint case. The learned Magistrate has passed order on the protest petition that is why it appears that the parties name was mentioned as
Achchan alias Mehraj v. Sameer Raza. The impugned order dated 7.4.2005 has been passed by the learned Magistrate after perusing the police
report and the learned Magistrate has considered the same and came to the conclusion that a prima facie offence u/s 307, I.P.C. is made out. The
final report was wrongly submitted, therefore, it was rejected. The learned Magistrate was empowered to pass such order. There is no illegality in
the impugned order, which requires interference of this Court. There is no illegality in the prosecution of the applicant, therefore, the prayer for
quashing the impugned order dated 7.4.2005 and quashing the proceedings pending in case No. 97/11 of 2005 pending in the court of learned 1st
A.C.J.M. Rampur is refused.
7. However, in view of the above discussion it is directed that this case shall be treated as State case and if the applicant appears before the court
concerned within 30 days from today and apply for bail, the same shall be considered and disposed of by the courts below, if possible, on the
same day in accordance with law.
8. For a period of 30 days today no coercive steps shall be taken against the applicant for his arrest.
9. With this direction this application is finally disposed of.