1 IN THE COURT OF MS. [ENTITY] ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02 (CENTRAL) DELHI Crl. R. NO. 154/13 1. Shri [ENTITY] s/o late Shri [ENTITY] R/o 310, Gali No. 7 Village Jagatpur, Delhi. 2. Shri [ENTITY] S/o Shri [ENTITY] R/o 310, Gali No. 7 Village Jagatpur, Delhi. 3. Shri [ENTITY] S/o Shri [ENTITY] R/o 310, Gali No. 7 Village Jagatpur, Delhi. REVISIONIST versus 1. [ENTITY] (GOVT OF N.C.T OF DELHI) 2. Shri [ENTITY] S/o late Shri [ENTITY] R/o 48/3, Bungalow Road Kamla Nagar, Delhi RESPONDENT DATE OF INSTITUTION : 22.11.2013 DATE OF JUDGMENT :26.03 .2014 [CASE NUMBER] Page 1 of 26 pages 2 [CASE NUMBER] 1. Shri [ENTITY] s/o late Shri [ENTITY] R/o D12, Single Storey Vijay Nagar, Delhi09. 2. Shri [ENTITY] S/o Shri [ENTITY] R/o B85, Delhi Administration Flats Timarpur, Delhi54. REVISIONIST versus 1. [ENTITY] (GOVT OF N.C.T OF DELHI) 2. The Assistant Commissioner of Police Anti Robbery Cell, Crime Branch Shakarpur, Delhi92. 3. Shri [ENTITY] S/o late Shri [ENTITY] R/o 48/3, Bungalow Road Kamla Nagar, Delhi RESPONDENT DATE OF INSTITUTION : 07.02.2014 DATE OF JUDGMENT :26.03 .2014 J U D G M E N T
1. By this order I shall dispose off two revision petition one is bearing no. 154/13 titled as [ENTITY] vs [ENTITY] and other [CASE NUMBER] Page 2 of 26 pages bearing no. 10/14 titled as [ENTITY] vs [ENTITY]. Both the revision petitions have arisen out of the same impugned order dated 07.10.2013 passed by Shri [ENTITY], Ld ACMM, Delhi, whereby the petitioners have been summoned by Ld Trial Court after rejecting the untraced report filed by the Investigating Officer.
2. Brief facts leading to the present revision are that Petitioner No. 1 and Respondent No. 2 are real brothers. Petitioner no 2 and 3 are sons of petitioner no. 1. It is alleged that respondent no 2 has filed complaint alleging therein that on 21.03.2010 at about 4 p.m, respondent no. 2 along with his family members namely Shri Shri [ENTITY] and Shri [ENTITY] reached his ancestral property being farm house at village Jagatpur in Delhi. At about 6 p.m, Shri [ENTITY] Advocate and his relative Shri [ENTITY], who were purportedly staying at the said farm house also joined them. The said persons who had assembled at the said farm house were sitting and having tea, suddenly the petitioners entered the said farm house. Petitioner no 1 is alleged to have been carrying his licensed revolver. The petitioner no 1 and 2 shouted at respondent no. 2 . The petitioner no 1 is alleged to have fired in the air with the said licensed revolver that he was carrying. The petitioner no. 2 aimed a revolver that he was carrying at respondent no. 2.
[CASE NUMBER] Page 3 of 26 pages Petitioner no 3 caught hold of the respondent no. 2 from whom respondent no. 2 freed himself and ran inside his house . The petitioner no. 2 fired a shot at the respondent no. 2 which got lodged at the door of the house. Neighbours gathered at the spot and petitioners fled away from the spot after injuring Shri [ENTITY] who was present at the farm house and threatening the respondent no. 2. Thereafter respondent no 2 filed an application u/[SECTION] [ACT] FIR was registered. Ld Trial Court has summoned the petitioners vide order dated 07.10.2013, and had rejected the untraced report as filed by the Investigating Officer.
3. Being aggrieved by the order of Ld Trial Court, present revision has been filed on the following grounds:
a) because, there is no independent evidence against the petitioners.
b) that the impugned order is contrary to law and facts on record.
c) That Ld Trial Court failed to take into consideration that FIR had been filed with malafide intention by respondent no. 2. Ld Trial Court failed to appreciate the fact that there are several cases pending in the court between the parties.
d) That Ld Trial Court failed to appreciate that even after the filing of untraced report the purported witnesses [ENTITY] and [CASE NUMBER] Page 4 of 26 pages [ENTITY] did not appear before the court.
e) That Ld Trial Court has failed to appreciate the scientific investigation in the form of reports of forensic laboratory.
with these and similar grounds revisionist has prayed for setting aside the order passed by Ld Trial Court.
4. I have heard arguments from Sh. [ENTITY], Ld counsel for revisionist [ENTITY] and others and from Shri [ENTITY], Ld counsel for revisionist [ENTITY] and another. I have also heard arguments from Ld Additional P.P for [ENTITY] Shri [ENTITY] and Shri [ENTITY], Ld counsel for respondent no.2.
5. Matter was argued by Shri [ENTITY], Advocate on behalf of revisionist [ENTITY] and others and same arguments were adopted by Shri [ENTITY], Ld counsel for revisionist [ENTITY]. It was argued on behalf of revisionists that parties to the case are real brothers and nephew and are having long standing property dispute between them and many litigations are pending between the parties. It was argued on behalf of the revisionists that IO has not filed the cancelled report but has submitted the untraced report. No independent witness has been examined as neither PW [ENTITY] nor PW [ENTITY], Advocate, who are alleged to be with the complainant at the time of incident have deposed before the IO.
[CASE NUMBER] Page 5 of 26 pages As regards the bullets and cartridge cases alleged to have been recovered from the spot, it was argued that licensed weapon of revisionist [ENTITY] is 12 bore gun and not 9 mm revolver, whereas cartridges found at the spot admittedly were of 9 mm caliber. Ld Trial Court had not referred the matter for further investigation on filing of untraced report by police and since there was nothing new found or placed before Ld Trial Court, there was no occasion for the Ld Trial Court for summoning the present revisionist. It was also argued by Ld counsel for revisionists that Ld Trial Court has taken the cognizance on the untraced report filed by the police official and has suomoto directed to add [SECTION] [ACT] , though there is no evidence to that effect. It is also submitted by Ld counsel for revisionists that Protest Petition as filed by the complainant, respondent no. 2 herein should have been treated as complaint, and the complainant should have been directed to lead evidence but Ld Trial Court has not appreciated the Protest Petition in that sense. It is further argued that presence of revisionist has not been shown by the IO at the scene of crime. It was also submitted by Ld counsel for revisionist that the complainant has filed Protest Petition before Ld Trial Court with the allegations that police has not investigated the matter properly and has not taken proper exhibits and thus investigation has not been conducted in fair [CASE NUMBER] Page 6 of 26 pages and just manner. Since Ld Trial Court has not referred the matter for further investigation, there was no prima facie evidence before Ld Trial Court for taking cognizance of the offence and summoning the present revisionist. Hence, Ld counsel for revisionists has prayed that revision petition be allowed and impugned order dated 7.10.2013 be set aside.
6. On behalf of respondent no. 2, Shri [ENTITY], Ld Advocate has argued the matter. He has submitted that after the untraced report was filed, the complainant ie respondent no. 2 obtained the certified copy of the same and he was given the certified copy of untraced report along with the case diary of the police. It is also argued on behalf of respondent no. 2 that IO had not mentioned that any witness was examined by the IO and no document has been filed by the IO in respect to the report. It is further submitted on behalf of the respondent no. 2 that in the present case repeatedly Investigating Officers were changed without there being any complaint by the complainant and IO has not filed the statements of witnesses along with final report. Ld counsel for respondent has also objected on filing of untraced report by the police and had stated that since name of accused persons are given in the complaint, there was no occasion for the IO to file untraced report.
7. At this stage, it is important to mention that Ld counsel for [CASE NUMBER] Page 7 of 26 pages complainant/Respondent no. 2 herein had admitted that the complainant has already filed the complaint case in respect to the incident in question, which is pending before Ld Trial Court and while submitting the arguments on present revision petition, Ld counsel for respondent no. 2 has mixed the facts and issues as mentioned by him in the complaint case. It is also argued by Ld counsel for respondent no. 2 that in the revision filed, court of revision cannot consider the evidence, considered by trial court. It is further argued that Ld Trial Court has rightly added [SECTION] [ACT] while summoning the accused persons/revisionist herein, as Inspector [ENTITY], who is IO had already added [SECTION] [ACT] during investigation but has removed it later on.
8. As regards the statement of Sri [ENTITY] and [ENTITY], it is argued by Ld counsel for respondent that it cannot be said that they are interested witnesses as they were known and related to both the parties. Further, it was also argued that case of the complainant is supported by ballistic report. Weapon of [ENTITY] was not seized by the IO and the finger print report and ballistic report are in favour of the complainant. There are prima facie evidence available against accused persons, therefore, Ld Trial Court has rightly summoned the accused.
9. In support of his arguments, Ld counsel for respondent had [CASE NUMBER] Page 8 of 26 pages relied upon the following authorities:Ld. counsel for the Appellant has relied upon the following judgments:
1.[ENTITY] vs [ENTITY] of Rajasthan , AIR 2004 Supreme court 1734
2.Sheo Shankar Singh Vs. [ENTITY] of Jharkhand and Anor. With Umesh Singh Vs. [ENTITY] of Jharkhand and ors, AIR 2011 Supreme Court 1403
3. K Neelaveni Vs. [ENTITY] , AIR 2010 Supreme Court
4. Dr. [PRECEDENT] 5 Fiona Shrikhande Vs. [ENTITY] of Maharashtra and Anr. , VII (2013) SLT 647 Supreme Court of India.
6. [PRECEDENT] [ENTITY] and Anr. [PRECEDENT].
7. Associated Cement Co. Ltd. Vs. Keshvanand, AIR 1998 Supreme court 596
8. [ENTITY] Vs. Mukesh Kumar, 2013 I AD (Delhi) 659
9. Brij Bhushan Vs. [ENTITY], 2011 (1) JCC 235
10. In rearguments, Ld counsel for revisionist has argued that the documents which ought to have been filed along with the final report have not been filed by the IO, hence no document was before the Ld Trial Court to decide on the report and it cannot be said that the Investigating Officers appointed in this [CASE NUMBER] Page 9 of 26 pages case were manipulated by the accused persons as it is the allegation of respondent no. 2/complainant. It is further submitted that call detail record of all accused persons /revisionist shows that they were not present in Jagatpur area at the time of alleged incident. Hence it is prayed by Ld counsel for revisionist that order of Ld Trial Court is liable to be set aside.
11. I have considered the arguments advanced by Ld counsel for the parties, judgments relied upon by Ld counsel for the parties and gone through the file.
12. It is settled preposition of law that trial Court is not bound by the decision of the IO as per report filed u/[SECTION] [ACT] It is for the trial court to decide whether there is sufficient prima facie evidence available or material available on record to summon the accused or not. There are catena of judgments which state that Magistrate can disagree with the closure report filed u/[SECTION] [ACT] C by the IO, as is held in Vasanti Dubey vs [ENTITY] of Madhya Pradeh(2012) 2SCC 731. It is also settled preposition of law that whenever the final report u/[SECTION] [ACT] C is filed the Magistrate has three options:
a) To accept the report.
b) If the Protest Petition filed, cognizance can be taken if sufficient material is available against the accused persons and [CASE NUMBER] Page 10 of 26 pages process can be issued.
c) To order reinvestigation in case.
13. Thus, position of law in regard to scope of present revision petitions is very clear that there is no limitation on the powers of Magistrate to take cognizance of offence inspite of filing of closure report or final report u/[SECTION] [ACT] by the police. There is also no dispute in respect to the powers of the Magistrate to summon the accused persons in case Magistrate is satisfied about the presence of sufficient material against accused or sufficient material to proceed against accused persons or to order for reinvestigation.
14. Legal position being clear, it is only to be considered in the present case, whether there was sufficient prima facie material before Ld Trial Court in the present case to proceed against the final report filed by the police or was there sufficient material on the record to summon the accused persons or not. Admittedly, the police has filed untraced report, though in my opinion, the police should have properly named it to be the closure report as IO has raised doubt about the occurrence of any such incident.
15. In order to dispose of the revision petition as filed, presently, it is necessary for the court to see whether there was any sufficient material on record before Ld Trial Court to pass the summoning order against present revisionist or not? In the case [CASE NUMBER] Page 11 of 26 pages of Vasanti Dubey vs [ENTITY] of M.P mentioned above, it was held by Hon'ble Supreme Court that "when the investigation reveals that there is no prima facie case, then it would be sheer abuse of process of court if the Magistrate ordered for investigation of the case". Admittedly, no reinvestigation has been ordered by Ld Trial Court , therefore, it is to be presumed that Ld Trial Court found the material available on record filed with the final report to be sufficient for proceeding against the revisionists. I will discuss the report as filed by the IO and the observations made by Ld Trial Court in this regard, in detail.
16. Firstly, it is important to mention that though in the final report, case diary of the police has not been made part of the report as it does not find mention in the final report, but the case diary appears to have been considered by Ld Trial Court and has been relied upon by Ld counsel for respondent no. 2/complainant and even the certified copy of the same has been issued to the complainant, which in my opinion is incorrect procedure. It was held in [ENTITY] vs P.P. Sharma 1992 Supp (1) SCC 222 that, "the entries in the case diary are not evidence nor can they be used by the accused or the court unless the case comes u/[SECTION] [ACT]".
17. Thus, it was held in that case that unless the case diary is used by the court to contradict the testimonies of police officer, [CASE NUMBER] Page 12 of 26 pages the entries in case diary can not be considered as evidence.
18. The case diary of the police can only be seen by the Ld court when the matter is being considered by the court but same can neither be given to accused persons nor can be given to the complainant unless, it is relied upon by police officer. In this regard, I am of the opinion that Ld Trial Court has committed irregularities in allowing the certified copy of the case diary to be given to the complainant, though it was not made the part of the final report.
19. The final report submitted by the IO /SI [ENTITY] and forwarded by ACP, [ENTITY], Crime Branch on 1.05.2012 has been given on three points basicallyfirstly no independent witness has deposed against accused persons; secondly the alleged weapon of offence and the cartridges found on the spot were not matching and thirdly the whereabouts of the accused persons as well as complainant on the date and time of incident are not on the spot or near the spot as per call detail record.
20. It is the case of the complainant that he was sitting in his farm house at Jagatpur from 4 p.m with witnesses [ENTITY], [ENTITY], [ENTITY] and [ENTITY] when accused persons had come and opened fire on 21.3.2010. The IO had recorded the statements of witnesses, which have not been included in the report, but can be seen from the case diary. [ENTITY]ments of these [CASE NUMBER] Page 13 of 26 pages witnesses have been recorded at different times, sometimes they have given the written statements also, as is admitted case of the complainant. It is common knowledge that at the time of initial information about occurrence, the correct facts are narrated by the witness to the police unless there is some motive for making false statement. Much weightage is generally not given by the courts to the later statements of witnesses as there are chances of improvements in the statements.
21. In the present case, in the statements of Shri [ENTITY] and Shri [ENTITY] who were public persons present allegedly with the complainant recorded on 22.03.2010 i.e just next day after the alleged incident, they have not supported the case of the complainant. Shri [ENTITY] had no where stated that he heard the gun shot. On the other hand, Shri [ENTITY] had also not stated that he saw some persons coming there or opening fire there, but had stated that complainant has told him that brothers and nephew of the complainant had come and tried to kill him. IO has not relied these statements, in my opinion, rightly so, as these statements are hearsay. Though, as per the case of the complainant, Shri [ENTITY] and Shri [ENTITY] were the eye witnesses of the incident but on the very first statement on 22.03.2010 they have not supported the case of the complainant. As regards the [CASE NUMBER] Page 14 of 26 pages statements of Shri [ENTITY] and [ENTITY], IO had not relied upon their versions as he has noted that there is long history of litigations between the parties and both persons ie Shri [ENTITY] and [ENTITY] are related to both parties , there are chances of [ENTITY] and [ENTITY] speaking under the influence of complainant as they were having litigations with revisionists. In this respect, IO has also recorded the statement of [ENTITY], one of the neighbour , who had stated that [ENTITY] had come to his house at 6 p.m on 21.03.2010 and stayed there for one hour. During the entire lengthy arguments and replies, Ld counsel for the Respondent No. 2 had nowhere stated anything against witness [ENTITY] and had not alleged that he, in any way, was the interested witness. The statements of [ENTITY] and Sri [ENTITY] thus becomes untrustworthy and much reliance cannot be given to those testimonies taking into account the long standing history of litigations between the parties ie between [ENTITY], [ENTITY] and revisionists, and on the basis of statements of [ENTITY] and thirdly on the basis that there is no counter explanation given by Respondent No. 2 for such statement of [ENTITY].
22. Even, there is statement of Shri [ENTITY], who had stated that no such incident had taken place. All these witnesses are neighbours of the complainant. No allegation against them has been levelled by the complainant at any forum. Hence, I am of [CASE NUMBER] Page 15 of 26 pages the opinion that there was sufficient material for the IO to conclude that testimonies of Sri [ENTITY] and [ENTITY] being interested witnesses is not reliable as the independent witness Shri [ENTITY] and Shri [ENTITY] had not supported the case of the complainant. The other witnesses examined have also not supported the case of the complainant .
23. Considering the opinion of Ld Trial Court in this regard, where Ld Trial Court has mentioned in the order dated 07.10.2013 that there is sufficient material on record, as well as statements of complainant and other eye witnesses recorded on 22.03.2010 by the IO to proceed against accused persons, it can only be said that the order has been passed by Ld Trial Court without going through the statements of witnesses recorded by the IO on 22.03.2010 as except the statements of complainant, [ENTITY] and Sri [ENTITY], no other witness has supported the case of the complainant. Even Shri [ENTITY], who is alleged to be the injured and Shri [ENTITY] who is stated to be present there, have not supported the case of the complainant, as per their statements recorded on 22.03.2010. Needless to say that after passing the orders for further investigation and on change of different IOs repeatedly, summons are stated to have been issued to Shri [ENTITY] to depose before the IO but neither he appeared before the IO again nor his address was found to be [CASE NUMBER] Page 16 of 26 pages correct nor witness appeared before the doctor concerned for the opinion on MLC. Hence, it can be said that Ld Trial Court has wrongly appreciated the evidence mentioned by the IO in the report. Rather, it would be appropriate to say that the Ld Trial Court has not considered the material available on record, in order to arrive at the conclusion of summoning the accused/ revisionists.
24. As regards the contention of Ld Trial Court that the complainant has stated that bullets were fired upon him by the accused and the version of the complainant is supported by eye witness ie [ENTITY], Shri [ENTITY] and [ENTITY] etc. It is unfortunate to say again that order passed by Ld Trial Court dated 07.10.2013 has been passed without appreciating the statements of the witnesses. As it has already been mentioned above, in the statements of Shri [ENTITY] and Shri [ENTITY] recorded on 22.03.2010, it is no where mentioned that any fire arm was shot on the farm house of the complainant. It has already been mentioned that statement of [ENTITY] only says that he was told by the complainant that his brothers and nephew have opened fire on him. This statement of [ENTITY] Advocate cannot be considered to be statement of eye witness and it cannot be said that they have supported the version of the complainant.
[CASE NUMBER] Page 17 of 26 pages
25. Even otherwise, admittedly, from the spot, two empty cases of 9 mm cartridges and one bullet were seized by the police. As per the FSL report, bullet and empty cartridges cases, all were found to be identical & of 9 mm and was opined to have been fired through the same fire arm. Thus, as per FSL report, bullet fired were of 9 mm fire arm whereas it is the case of the complainant that revisionist [ENTITY] had come on the spot with his licensed revolver, admittedly revisionist [ENTITY] has 12 mm bore gun and not 9 mm revolver. It is not the case of the complainant that revisionist [ENTITY] or any other revisionist was having 9 mm pistol /fire arm in their possession on that date as in the complaint, it is specifically stated by the complainant that [ENTITY] was having his licensed gun. Thus, it is clear from the documents filed on record that even the ballistic report does not support the case of the complainant and opinion given by Ld Trial Court in this regard is not free from faults.
26. Further, it has been specifically mentioned by the IO from the call detail records of all the concerned persons ie complainant/Respondent No. 2 and revisionists which shows that though it is alleged that complainant/respondent no. 2 was present in the farm house at 4 PM but as per his call detail record till 5.30 PM he himself was not present in Jagatpur area. The very basis of the complaint has not been, prima facie, proved by [CASE NUMBER] Page 18 of 26 pages the complainant. Ld Trial Court has rejected the call detail record of revisionists on the ground that this amounts to plea of [ENTITY] of the accused persons, which cannot be considered at the stage of consideration of final report. Agreeing with the opinion of Ld Trial Court in this regard, I am constrained to observe that once a person is coming to the court or to the police with some allegations or grievance, he is bound to show his bonafide and truthfulness of the complaint. If it is the case of the complainant/Respondent No. 2 that he was present at 4 PM with other persons at his farm house but as per his call detail record, he is found to be present away from Jagatpur area ie farm house till 5.30 PM, it cannot be believed that complainant has given correct information to the police. Further, the call detail records of Sri [ENTITY] and [ENTITY], who are alleged to be with the complainant at the time of incident at Jagatpur, show that Shri [ENTITY] had called the complainant at 5.42 PM and 6.48 PM whereas Sri [ENTITY] had called at 5.41 PM to complainant/respondent no. 2. If [ENTITY] and Sri [ENTITY] were calling the complainant/Respondent No. 2 at 5.42 PM or 5.41 PM, it shows that these persons were not sitting with the complainant at the time of incident.
27. Though, there are call detail records of the accused persons/revisionists also on record showing their presence at [CASE NUMBER] Page 19 of 26 pages some other place at the relevant date and time but since it will amount to defence taken by accused persons or plea of [ENTITY], as is rightly stated by Ld Trial Court, I am not inclined to discuss their position on the relevant date. However, it is necessary to state that if accused [ENTITY] is stated to be in his office till 8 PM on the relevant date, then the legal position in respect to the investigation and inquiry requires that merely on the basis of the complaint a person cannot be held guilty. Appropriate inquiry and investigation in the alleged circumstance is to be made by the IO and only thereafter, finding sufficient material against accused, showing their culpability , accused persons should be brought before the judicial system, otherwise acting on any complaint without investigating the truthfulness of the complaint and putting the person concerned to face rigour of trial will amount to miscarriage of justice.
28. In view of the above discussion, I am of the opinion that the order dated 07.10.2013, whereby Ld Trial Court had rejected the final report submitted by the IO and has summoned the accused persons ie revisionists herein has been passed without properly evaluating the material available on record and without going through the documents placed on record by the IO. It is also important to mention that Ld Trial Court has mentioned various judgments in the order dated 07.10.2013 which have been relied [CASE NUMBER] Page 20 of 26 pages upon by Ld counsel for complainant but has failed to discuss the applicability of those judgments to the facts of the case in hand. I will discuss and explain the applicability and relevance of judgments relied upon by respondent no. 2/complainant separately.
Judgments relied upon by Respondent No. 2/complainant
a) The judgment [ENTITY] vs [ENTITY] of Rajasthan 2004 (SC) 1734 relied upon by Ld counsel for Respondent No. 2 is on the point of powers of Magistrate to accept or reject the final report of police.
It is settled preposition of law and there is no denial to this effect. However in the case of [ENTITY], mentioned above, Hon'ble Apex Court while considering the power of Magistrate to accept or reject the report of police officer, has held that:
"At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction."
(b) The judgment titled as Sheo Shanker Singh vs [ENTITY] of Jharkhand2011 (2) Cr.C.C 613 (SC) relied upon by Ld counsel for respondent no. 2 does not apply to the facts and circumstances of the case as the judgment is in relation to trial of offence and on the point of relevancy of motive. While in the present case in hand, trial has not yet started, therefore, the [CASE NUMBER] Page 21 of 26 pages question of relevancy of motive is not required to be considered. Even otherwise, in this case while discussing relevancy of the motive and requirement of sending the case property to FSL for Ballistic expert examination - it has been opined by Hon'ble Supreme Court that:
"In the light of the above the failure on the part of the investigating officer in sending the bloodstained clothes to the FSL and the empty cartridges to the ballistic expert would not be sufficient to reject the version given by the eye witnesses. That is especially so when a reference to the ballistic expert would not have had much relevance since the weapon from which the bullets were fired had not been recovered from the accused and was not, therefore, available for comparison by the expert".
From bare perusal of observations in the above mentioned case, made by Hon'ble Supreme Court, it is clear that once the weapon was not recovered from the accused, there was no necessity of sending the bullet for forensic examination. In the present case bullets were recovered and sent for forensic examination and it was found of different caliber then the admitted gun of revisionist. Hence this judgment does not support the case of the complainant/Respondent no. 2.
(c) The judgment K Neelveni vs [ENTITY] 2010 AIR (SC) 3191 is on the point of quashing of FIR by the Hon'ble High Court. In this [CASE NUMBER] Page 22 of 26 pages judgment it was held by Hon'ble Supreme Court that quashing of FIR by Hon'ble High Court even prior to taking cognizance by Magistrate, was wrong. This judgment does not apply to the present case, as in the present case there is no case of quashing of FIR.
(d) In the judgment titled as [PRECEDENT] relied upon by Ld counsel for Respondent No. 2, it was held by Hon'ble Supreme Court that while taking cognizance after filing of final report by the IO the Magistrate has to consider, prima facie evidence against the accused persons.
Even in this case Hon'ble Supreme Court has affirmed the view that the Magistrate is not bound to take cognizance of the offence complained of, only if the IO gives the information that investigation has made out a case against accused persons. However, while arriving at the conclusion to ignore the final report submitted by the IO, the Magistrate has to intelligently apply his mind to the facts emerging from the investigation and take the cognizance of the case, if he thinks fit to exercise his powers u/[SECTION] [ACT] Therefore, by the order of Hon'ble Supreme Court in [PRECEDENT] (mentioned above) it was reiterated by Hon'ble Supreme Court that "in each and every matter the Magistrate has power to refuse to accept the [CASE NUMBER] Page 23 of 26 pages final report filed by the IO but the only condition attached to this is that while doing so, Magistrate should be satisfied that there are sufficient prima facie material to take cognizance of the case and for proceeding against accused persons."
(e) The other judgments relied upon by Ld counsel for Respondent no. 2 are not relevant for the present purposes , hence are not being discussed.
29. From the above discussion, it is clear that Ld Trial Court has the jurisdiction and right to reject the report of the IO filed u/[SECTION] [ACT] but such right is not unlimited and unfettered. Said right is limited to the extent that Magistrate has to be satisfied on availability of the sufficient material on the record to proceed against accused persons. Hence, I am of the opinion that judgments relied upon by Ld counsel for Respondent no. 2 also stress upon the point that Magistrate has to be prima facie satisfied for the availability of sufficient material for taking cognizance against accused persons. Thus, in turn they provide support to my opinion that sufficient material is required to be available on record, prior to proceeding against an accused, in the circumstances, if the trial court is not inclined to accept the final report filed by IO u/[SECTION] [ACT] This not being the case, in present revision petitions, the order dated 07.10.2013, passed by Ld Trial Court is liable to be set aside.
[CASE NUMBER] Page 24 of 26 pages
30. In [PRECEDENT] , it was held by Hon'ble Supreme Court that unless there is perverse finding the court in revision should not interfere with the order of trial court. Being bound by the order of Hon'ble Supreme Court and finding the order passed by Ld Trial Court in present case, having been passed without the applications of legal preposition and scrutiny of documents available on record, I am constrained to say that Ld Trial Court has not rightly perused the report given by the IO. It appears that the Ld Trial Court was confused between the complaint case filed by the complainant in respect to the present incident, which is also pending before Ld Trial Court, with the final report submitted by the IO. Ld Trial Court has passed the order dated 07.10.2013 without considering the applicability of the judgments relied upon by Ld counsel for complainant.
31. In Vasanti Dubey vs [ENTITY] of Madhya Pradesh(2012) 2 SUPREME COURT CASES 731 it was held by Hon'ble Apex Court that:
"The enquiry under [SECTION] [ACT] cannot be given a goby, if the Magistrate refused to accept the closure report submitted by the investigating agency as this enquiry is legally vital to protect the affected party from a frivolous complaint [CASE NUMBER] Page 25 of 26 pages and a vexatious prosecution in complaint cases".
32. With the words of wisdom given by Hon'ble Supreme Court in case Vasanti Dubey vs [ENTITY] of Madhya Pradesh, I am of the opinion that course of action taken by Ld Trial Court was not appropriate and as per the observations of Hon'ble Supreme Court, the appropriate course of action has not been taken by Ld Trial Court.
33. In view of my above discussion, I am of the opinion that order passed by Ld Trial Court dated 07.10.2013 has been passed without appreciating the documents available on record and is therefore liable to be set aside. Thus, order dated 07.10.2013 passed by Ld Trial Court is set aside. Revision bearing no. 154/13 titled as [ENTITY] vs [ENTITY] and ors and revision petition no. 10/14 titled as [ENTITY] vs [ENTITY] and others are allowed.
34. Trial court record be sent back with the copy of this order. File of revision be consigned to Record Room. Copy of this order be kept in [CASE NUMBER] titled as [ENTITY] vs [ENTITY].
ANNOUNCED IN THE OPEN COURT ON 26th March , 2014. ( [ENTITY] ) ADDL. SESSIONS JUDGE (CENTRAL) DELHI [CASE NUMBER] Page 26 of 26 pages