Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 1497 of 2019 Petitioner :- Azmat Beg Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Virendra Kumar Jaiswal Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioner; learned AGA for the respondent nos. 1, 2 and 3; and perused the record.
The instant petition seeks a direction upon the investigating agency to properly conduct investigation of Case Crime No.1601 of 2018, under Sections 147, 148, 149, 307 and 302 I.P.C., Police Station Murad Nagar, District Ghaziabad.
In the counter affidavit, it was stated that after investigation final report has been submitted.
On 14.02.2019, we had passed the following order:
"Although counter affidavit has been filed today stating therein that final report has been submitted but we are not satisfied with submission of final report, inasmuch as, in the First Information Report it is specifically stated that two other persons have also received injuries. Whether the injuries of other two persons were examined medically or not and whether there appears any injury report as regards their injuries needs to be ascertained.
Learned AGA prays for and is allowed two weeks time to file detailed counter affidavit of the Investigating Officer disclosing whether the persons who are stated to have been injured in the incident, as alleged in the First Information Report, were medically examined or not and whether their injury reports have been taken on record or not as also whether their statement had been recorded or not under Section 161 CrPC. If they have been examined for their injuries and the injury report is on record, counter affidavit shall enclose the copy of the injury reports as well as copy of statement of those witnesses recorded under Section 161 Cr.P.C.
List this petition on 27th February, 2019, on which date the Investigating Officer of the case shall also be present before the Court in person.
Let a copy of this order be supplied to the learned AGA for compliance."
In pursuance of the above order, the Investigating Officer of the case has filed an affidavit of compliance, today. The Investigating Officer is also present before the Court in person.
In the affidavit of compliance, it has been stated in paragraph 4 that the persons injured, namely, Shadab and Asghar were medically examined by the doctors. The medical examination reports are there on record.
From medical examination report, it appears that they have sustained injuries, simple in nature, though, in respect of few injuries, they were advised for X-ray. There is no specific statement in the affidavit of compliance as regards the result of X-ray, which was advised. However, the statement of Shadab and Asghar is there on record.
From the statement of Shadab and Asghar, it appears that the incident was a mere scuffle. It is not specifically stated that any serious injury was inflicted upon the deceased Hasrat Beg @ Gullu.
The postmortem report of the deceased Hasrat Beg @ Gullu is there on record. It appears that postmortem was conducted twice. In both the reports, the cause of death could not be ascertained and viscera was preserved. The postmortem report does not disclose presence of any such injury, which may correlate with cause of death.
Sri Deepak Mishra, learned A.G.A., has pointed out, from papers available with him, that X-ray was conducted and nothing abnormal was detected.
Learned counsel for the petitioner has submitted that there was no justification for the police to submit final report, particularly, when there were two persons who had received injuries and had supported the incident in their statement recorded under Section 161 Cr.P.C.
It is well settled legal principle that opinion of the Investigating Officer of the case is not binding on the Court. When a police report under Section 173 (2) Cr.P.C. is presented, the Magistrate concerned is free to form its opinion and take action on the police report and initiate the proceeding against the accused.
Under the circumstances, since police report under Section 173 (2) Cr.P.C. has already been submitted, we deem it appropriate to dispose off this petition by giving liberty to the petitioner to ventilate his grievance before the Magistrate concerned.
The petition stands disposed off. Order Date :- 27.2.2019 Ajeet