JUDGMENT Ravindra Singh, J.
1. Heard Sri Ravindra Rai and Sri Ashok Kumar Rai learned Counsel for the applicant and the learned A.G.A. and Sri Nitin Gupta learned Counsel for O.P. No. 2.
2. This application is filed against the order dated 19.2.2005 passed by the learned A.C.J.M. Hapur district Ghaziabad in complaint case No. 2589 of 2004 Gaurav v. Sunil Kumar and Ors. whereby the learned magistrate has taken cognizance and summoned the applicants to face the trial for the offence punishable under Sections 420, 465, 467, 468 and 471 read with Section 120B I.P.C.
3. It is contended by the learned Counsel for the applicants that an F.I.R. was lodged by Sri Ram Singhal against the applicants at P.S. Hapur district Ghaziabad on 18.9.2004 at about 10.15 a.m. in respect of the incident which had occurred in the night of 17/18.9.2004 in case crime no. 423 A of 2004 under Sections 147, 148, 149, 307, 452, 323 I.P.C., the matter was investigated by the local police, thereafter charge sheet dated 16.11.2004 was submitted under Sections 147, 148, 149, 323, 358 I.P.C. On the basis of that charge sheet the learned magistrate has taken cognizance against the applicants.
4. It is further contended by the learned Counsel for the applicants that during the course of investigation injured Gavrav has filed an affidavit with his freewill and consent in favour of the applicants because he was injured witness who had received the gun short injury in the aforesaid incident, therefore, the charge sheet was not submitted under Section 307 I.P.C. against the applicants. The injured Gaurav, the complainant of this case subsequently, filed a complaint in the court of learned A.C.J.M. Hapur alleging therein that he had received gun shot injury on his stomach in the incident dated 17.9,2004, which had occurred at about 10 p.m. After receiving the injury his condition become very serious, therefore, he was admitted in the Nursing Home of Hapur. He stated that during the course of investigation of the case Crime No. 423 A of 2004, he has not filed any affidavit but a forged affidavit was filed and on the basis of that forged affidavit the 1.0. has not submitted charge sheet under Section 307 I.P.C. Thereafter, the statement of the witnesses were recorded under Sections 200 and 2002 Cr.P.C. and after considering the complaint and statement of the witnesses and other relevant documents, learned magistrate took cognizance and summoned the applicants for the offence punishable under Sections 420, 465, 467, 468, 471 read with Section 120B I.P.C. vide order dated 1.9.2.2005.
5. It is contended by the learned Counsel for the applicants that in respect of the same incident, along with the allegation that a forged affidavit was filed, a complaint has been filed and the learned magistrate has taken cognizance which is not permissible in the eyes of law.
6. It is further contended that the complainant Gaurav has filed the affidavit with his free will, which was duly verified and on the basis of that affidavit he was interrogated by the I.O. who had stated that he had filed the affidavit but he has changed his version due to some other reason. It is further contended that on the basis of the allegation made against the applicants no offence is made out.
7. It is opposed by the learned A.G.A. and the learned Counsel of opposite party no. 2, complainant, by submitting that the impugned order is not suffering from any illegality because the learned magistrate has taken the evidence on the basis of the complaint and the statement of the witnesses recorded under Sections 200 and 202 Cr.P.C. and on the basis of the allegations made therein a prima facie offence under Sections 420, 465, 467, 468, 471 read with Section 120B I.P.C. is made out and there was no sufficient material against the applicants to proceed further.
8. After considering the facts and circumstances of the case and the submission of the learned Counsel for the applicants and the learned A.G.A. and the learned Counsel for the complainant, and from a perusal of the F.I.R. of case crime no. 423 A of 2004 P.S. Hapur, its charge sheet dated 16.11.2004, the complaint, the statement of the witnesses recorded under Section 200 and 202 Cr.P.C. and the impugned order dated 19.2.2005, it appears that in the present case, the complaint was filed under Sections 147, 148, 149, 323, 307, 452, 420, 465, 468 and 471 I.P.C., but the learned magistrate has not taken cognizance in respect of the offence punishable under Section 147, 148, 149, 323, 307, and 452 I.P.C. because in respect of, those offence investigations was done and charge sheet was submitted that the learned magistrate has taken cognizance only on the allegation that a forged affidavit of the complaint Gavrav was filed during the investigation of the case and on the basis of that affidavit the I.O. has not submitted charge under Section 307 I.P.C.
9. The learned magistrate has passed a reasoned order considering all the facts and circumstances of the case and came to the conclusion that on the basis of the allegation made against the applicants prima facie offence under Section 420, 465, 467, 468, 471 read with Section 120B I.P.C. is made out, which is a separate offence though it has been committed during the investigation of the case crime no. 423 A of 2005 and the learned magistrate has not taken cognizance in respect of the offence which were investigated by the I.O. in the aforesaid case, because against that police report it was open to the first informant to file objection at the time of taking cognizance, or at the time of committal of the case or at the time of framing of the charges, but the learned magistrate has rightly summoned the applicants for the offence as mentioned above because on the basis of the allegations made in the complaint and in the statement of the witnesses a prima facie "offence is made out and there was sufficient material to proceed further. The learned magistrate did not commit any mistake in passing the impugned order and the impugned order does not require any interference by this Court. Therefore, prayer for quashing the impugned order dated 19.2.2005 passed by the learned Additional C.J.M. Hapur district Ghaziabad in criminal case no. 2589 of 2004 is refused. The interim order dated 12.1.2006 passed by this Court is vacated.
10. Accordingly this application is dismissed.