RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No.39 of 2004 Nirmal Das @ Kalu and others … Revisionists Versus State of Uttaranchal and another … Respondents Dated: March 24, 2009 Sri Rajendra Kotiyal, Adv. for the revisionists Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1 Sri H.C. Pathak, Adv. for Respondent No.2 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionists under Sections 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 28.02.2004 passed by Additional Sessions Judge/First FTC, Hardwar in Criminal Revision No.103 of 2002, Shiv Prakash Vs. State of Uttaranchal and others. 2. Heard Sri Rajendra Kotiyal, Adv. for the revisionists, Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1 and Sri H.C. Pathak, Adv. for Respondent No.2 and perused the entire material available on record. 3. In brief, the facts of the case are that on 29.5.2000, an First Information Report was lodged by the respondent no.2-Shiv Prakash against the revisionists-Nirmal Das @ Kalu, Bal Govind, Har Prasad and Koka Ram, on the basis of which the case was registered against the revisionists under Sections 307/504/506 IPC as Case Crime No.459 of 2000 and also u/s 25 of Arms Act, 1959 (hereinafter to be referred as the Act) as Case Crime No.460 of 2000. After that the matter was investigated by the Investigating Officer and after the investigation, the I.O. submitted the charge sheet against the accused persons. But later on the investigation was transferred to another I.O. and in the reinvestigation, the final report was submitted in the aforesaid case. The respondent no.2-Shiv Prakash filed a protest petition before the Chief Judicial Magistrate, Hardwar. After hearing counsel for the parties, learned CJM, Hardwar vide his judgment and order dated 15.1.2002 rejected the protest petition and accepted the final report submitted by the police. Against the said judgment and order dated 15.1.2002, respondent no.2- Shiv Prakash preferred a revision. The said revision was allowed by Addl. Sessions Judge/First FTC, Hardwar vide his judgment and order dated 28.2.2004 whereby judgment and order dated 15.1.2002 passed by CJM, Hardwar accepting the final report submitted by the I.O. in case crime No.459/2000 under Sections 307/504/506 IPC and taking cognizance u/s 182 I.P.C., was set aside. Learned Addl. Sessions Judge further directed the trial court i.e. CJM, Hardwar to take cognizance against the revisionists under Sections 307/504/506 IPC and to proceed according to law. Feeling aggrieved with the aforesaid judgment and order dated 28.2.2004, the revisionists have preferred the present revision before this Court. 4. Sri Rajendra Kotiyal, learned counsel for the revisionists has argued that he is only challenging the judgment and order dated 28.2.2004 by which the Addl. Sessions Judge/First FTC, Hardwar has directed the trial court i.e. CJM, Hardwar to take cognizance against the revisionists u/s 307/504/506 IPC. He further submitted that the Addl. Sessions Judge should not have directed the CJM to take cognizance against the accused persons under the relevant sections and only the CJM is entitled to take cognizance and that too after examining and appreciating the evidence on record. In support of this argument, he cited a judgment rendered by learned Single Judge of this Court in the case of Nathi Singh Tomar Vs. State of Uttaranchal and another reported in 2003 (46) ACC 758. Sri H.C. Pathak, Advocate appearing for respondent no.2 also conceded to this point and agreed that up to this extent, the judgment and order passed by learned Addl. Sessions Judge is not correct. The direction given by learned Addl. Sessions Judge, Hardwar to the trial court to take cognizance against the revisionists under Sections 307/504/506 IPC is not as per law. The learned Addl. Sessions Judge was only competent to consider the legality and propriety of the order passed by CJM, Hardwar and if it was found that there was no appraisal of the material on record, the learned Addl. Sessions Judge should have set aside the impugned order of rejection of protest petition and should have directed the CJM, Hardwar to re-consider the evidence on record as to whether a prima facie case was made out or not against the accused persons. Considering this, the revisional judgment and order is liable to be modified up to this extent. 5. For the reasons as recorded above, the revision is partly allowed. The judgment and order dated 28.2.2004 passed by Addl. Sessions Judge/First FTC, Hardwar, whereby the judgment and order dated 15.1.2002 passed by the trial court for accepting the final report in Case Crime No.459 of 2000 under Sections 307/504/506 IPC and taking cognizance u/s 182 IPC, was set aside, is hereby affirmed. However, the judgment and order dated 28.2.2004 directing the trial court to take cognizance against the revisionists under Sections 307/504/506 IPC, is hereby set aside. CJM, Hardwar is directed to decide the case on merit after appreciating the material available on record and also after affording opportunity of hearing to both the parties in accordance with law. (Dharam Veer, J.) March 24, 2009 Rajeev Dang