IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.43 OF 2002 Kalyan Singh and seven others ……… Revisionists Versus State of Uttarakhand and another ..…... Respondents Dated: August 12, 2010 Mr. Lokendra Dobhal, Advocate for the revisionists Mr. Amit Bhatt, Addl. GA for respondent no.1 None for respondent no.2 HON. DHARAM VEER, J. This criminal revision, preferred under section 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 13.5.2002 passed by Sessions Judge, Pithoragarh in Crl. Rev. No.3 of 2001, Dhan Singh v. State of Uttarakhand, whereby the learned Sessions Judge allowed the revision of respondent no.2 and set aside the judgment and order dated 31.1.2001 passed by Judicial Magistrate, Didihat. 2. Heard learned counsel for the parties and perused the material available on record. 3. In brief, the facts of the case are that on 10.11.1999 respondent no.2 Dhan Singh filed a complaint before SDM, Didihat and got registered a First Information Report against the revisionists Kalyan Singh, Smt. Heera Devi, Jai Singh, Smt. Bhanu Devi, Harish Singh, Gagan Singh, Guman Singh and Dammar Singh, on the basis of which, the case was registered against the revisionists under Sections 147/323/504/506 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and Section 25 of Arms Act, 1959 (hereinafter to be referred as the Act). After lodging of the FIR, the matter was investigated by the I.O. and on completion of investigation, final report was submitted in the case. On the final report, notices were issued to the respondent no.2, who then filed the protest petition against the final report. Thereafter the statement of complainant/respondent no.2 Dhan Singh were recorded u/s 200 Cr.P.C. and that of witnesses, namely, Jai Singh and Mohan Singh were recorded u/s 202 Cr.P.C. After hearing learned counsel for the parties and perusing the material available, learned Judicial Magistrate, Didihat, vide his judgment and order dated 31.1.2001, rejected the protest petition of respondent no.2 and accepted the final report submitted by the I.O. Against the said judgment and order dated 31.1.2001, the respondent no.2 preferred a revision in the court of Sessions. The said revision was allowed by learned Sessions Judge, Pithoragarh vide his judgment and order dated 13.5.2002 and whereby the judgment and order dated 31.1.2001 passed by J.M., Didihat was set aside. Learned Sessions Judge further directed the trial court to take cognizance against the revisionists u/Ss 147/323/504/506(2) of IPC and to proceed according to law. Feeling aggrieved with the aforesaid judgment and order dated 13.5.2002, the revisionists have preferred the present revision before this Court. 4. Sri Lokendra Dobhal, learned counsel for the revisionists has argued that the judgment and order dated 13.5.2002 passed by Sessions Judge, Pithoragarh is not correct as per law. I find force in the argument put forth by learned counsel for the revisionists. Vide order dated 13.5.2002, learned Sessions Judge, Pithoragarh directed J.M. Didihat to take cognizance against the revisionists u/Ss 147/323/504/506(2) of IPC. The direction given by learned Sessions Judge to the trial court to take cognizance against the revisionists under the aforesaid sections is not as per law. Learned Sessions Judge should not have directed the trial court to take cognizance against the revisionists under the relevant sections and only the JM is entitled to take the cognizance and that too after 2 examining and appreciating the evidence on record. The learned Sessions Judge was only competent to consider the legality and propriety of the order passed by JM, Didihat and if it was found that there was no appraisal of the material on record, the learned Sessions Judge should have set aside the impugned order of rejection of protest petition and should have directed the JM, Didihat to reconsider the evidence on record as to whether a prima facie case is 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 13.5.2002 passed by Sessions Judge, Pithoragarh, so far as it relates to direct the trial court to take cognizance against the revisionists u/Ss 147/323/504/506, is hereby set aside. J.M. Didihat 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 and producing evidence in accordance with law. (Dharam Veer, J.) August 12, 2010 RG 3