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Gajendra @ Samley v. State Of U.P. & Another - APPLICATION U/s 482 No. 6316 of 1987  RD-AH 6512 (10 April 2007)
Criminal Misc. Application No. 6316 of 1987
Gajendra @ Samley and others Vs. State of U.P. and another.
Hon'ble V.D.Chaturvedi, J.
This is a petition under section 482 Cr.P.C.
The F.I.R. was lodged by opposite party no.2 Makhan Singh that the accused Toofan and Shamley armed with pistol, Balwant Singh armed with Axe, Ram Ji Lal armed with Dharia, threatened the complainant to kill; that Toofan and Shamley with the intention to commit murder fired at the complainant but the complainant sustained no injury. The names of the witnesses who saw the occurrence are also mentioned in the F.I.R. The police after investigation submitted the Final Report, against which a protest petition was filed. The Magistrate after perusal of the record found that there was sufficient evidence to proceed for an offence u/s 307 I.P.C. He, therefore, took the cognizance, hence this petition.
In para 7 of the petition it is stated that the witnesses named in the F.I.R. have not supported the F.I.R. version.
In para 8 of the petition it is stated that there was no medical evidence and that the F.I.R. itself showed that the complainant received no injury in the incident. The impugned order dated 28.10.86 shows that the cognizance was taken upon the evidence collected by the Investigating Officer.
When the Magistrate takes cognizance u/s 190(1)(b) Cr.P.C. upon the evidence collected by the Investigating Officer, where the Investigating Officer has submitted the final report, it is always the duty of the Magistrate to see whether there really exists any ground to proceed against the accused or not. The matters of filing the complaint or lodging of the report on false facts or on false allegations are not unknown. The Magistrate, therefore, must record his reasons where he passes the orders against the result of the investigation. The reasons must be convincing.
In the case in hand it is stated in the petition that none of the witnesses mentioned in the F.I.R. supported the prosecution case and that none sustained injury in the incident.
No counter affidavit has been filed in the case.
I am unable to understand when no witness of F.I.R. supported the prosecution version and when no injury was sustained by the complainant ( as is evident from the F.I.R.), what was there to inspire the confidence of the Magistrate to summon the accused for offence u/s 307 I.P.C.
In view of what has been discussed above I find it a fit case where the proceedings pending in the court below be quashed and the summoning order dated 28.10.86 and the criminal proceedings of Case No.2634 of 1986 be quashed.
The petition is allowed.
The order dated 28.10.86 and the proceedings in the aforesaid case are quashed.
Communicate this order to the court below within 3 weeks.
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