Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 35563 of 2018 Petitioner :- Surjeet Kumar Sharma Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Mahesh Prasad Pandey Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
A short counter affidavit has been filed on behalf of the respondent no.6 today, which is taken on record.
Heard Sri Mahesh Prasad Pandey for the petitioner; Sri Rohit Pandey and Sri Satyendra Singh for the respondent no.6; Sri Anurudh Tiwari for the respondent no.4; Sri Deepak Mishra, learned AGA, for the State respondents; and perused the record.
The petitioner had lodged an FIR at Police Station Hathras Junction, District Hathras, which was registered as Case Crime No. 0418 of 2018, under Section 147 and 302 IPC. In the FIR, it is alleged that the son of the petitioner left on a scooty with his friend Vishal Varma (respondent no.4). Later, informant's son was served liquor and, thereafter, he was assaulted, as a result, he sustained injuries and was rushed to the Trauma Centre from where he was shifted to Safdarjung Hospital, Delhi where he succumbed to the injuries. It is alleged that the entire incident was witnessed by Bhanu Prakash son of Late Kanchan Lal and Rahul Sharma son of Ashok Sharma.
When the matter was not investigated to the satisfaction of the petitioner, he filed this petition for a direction upon the second and third respondents to investigate the matter properly.
This Court by its order dated 07.12.2018 directed for the personal presence of the Investigating Officer alongwith case diary.
The Investigating Officer alongwith case diary is present before us.
Sri Deepak Mishra, learned AGA, on the basis of instruction received as well as on perusal of case diary, has informed the Court that on 31.10.2018, the police has submitted a final report in the matter, upon finding that it was a case of road accident and not murder. The attention of the Court was invited towards the medical report, which is at page 30 of the paper book, to suggest that in the medical papers in the brief history of the deceased it was referred to as a case of road accident.
It was also submitted by the learned AGA that it does not appear to be a case where any weapon was used to inflict injury upon the deceased rather it appears that the deceased suffered various abrasions including lacerated wounds as well as fracture of skull bone, which could be due to an accident.
As, in the FIR, the informant had disclosed that the incident was witnessed by Bhanu Prakash and Rahul Sharma. The learned AGA was required to ascertain from the case diary as to whether their statement was recorded during the course of investigation.
Learned AGA, upon perusal of the case diary, informed us that the statement of Bhanu Prakash and Rahul Sharma was recorded and they appear not to be eye witness of the incident, but had heard about the incident. It has also been submitted that the friend of the deceased, namely Vishal Varma, who was also in an injured condition, had given statement that he as well as deceased had consumed liquor and they could not control the vehicle and, therefore, they met with an accident.
It appears that by placing reliance on all the aforesaid statements as well as circumstances of the case, the police submitted final report.
Learned counsel for the petitioner has submitted that the witnesses have spoken to the petitioner that if the court calls then they can disclose the manner in which the incident had occurred.
Be that as it may, once a final report has been submitted in the court, the petitioner, as an informant, has liberty to file protest petition before the Magistrate. In case statement of few witnesses, who have witnessed the incident, have not been recorded and they are willing to give their statements, it is open for the informant (petitioner) to file their affidavits alongwith protest petition. Upon receipt of such protest petition, it is always open to the Magistrate to direct for further investigation in light of those affidavits or to treat the protest petition as a complaint and follow the complaint case procedure. Further, in case the Magistrate comes to the opinion that there is sufficient material in the police report to take cognizance of the offence and to proceed further against the accused, the Magistrate has power to do so.
In view of the above, as the police has submitted its report in court, we deem it appropriate to dispose off this petition with liberty to the petitioner to take recourse to appropriate legal remedy, as may be advised.
Order Date :- 21.1.2019 Lbm/-