NAZIM AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

         MATTERS UNDER ARTICLE 227 No. - 1324 of 2025

Nazim And 3 Others
                                                               .....Petitioner(s)
                                    Versus
State of U.P. and Another
                                                             .....Respondent(s)

Counsel for Petitioner(s)               :    Salilendu Kumar Upadhyay
Counsel for Respondent(s)               :    Anurag Dubey, G.A.

Court No. - 89
                      HON'BLE ANIL KUMAR-X, J.

1. Heard Sri Shailendu Kumar Upadhyay, learned counsel for the petitioners,
Sri Anurag Dubey, learned counsel for respondent no. 2 and Sri R.K.Singh,
learned AGA for the State as also perused the record.

2. Learned counsel for the petitioner has prayed for a direction to set aside
the order dated 21.9.2023 passed by Judicial Magistrate, Court No. 1,
Mainpuri and order dated 10.10.2024 passed by District and Sessions Judge,
Mainpuri and proceedings of Criminal Case No. 8448 of 2024 arising out of
Case Crime No. 0177 of 2023, Police Station Alau, District Mainpuri.

3. Learned counsel for the petitioners submitted that they have been falsely
implicated by the informant, Asim, who lodged the FIR in Case Crime No.
0208 of 2021, under Sections 307, 323 and 504 IPC, at Police Station Alau
Police Station, District Mainpuri. It is alleged in the FIR that the brother of
the informant, namely Safir, was shot by petitioner Nazim, while the other
co-petitioners facilitated the act by catching hold of the injured.It is further
submitted that during the course of investigation, statements of the informant
as well as the injured were recorded on two occasions, and in both
statements, material improvements were made, which cast serious doubt on
the veracity of the prosecution version. Upon investigation, the allegations
were found to be false and a closure report was submitted by the
Investigating Officer. However, the learned Magistrate directed further
investigation. Pursuant thereto, further investigation was conducted, and
again a closure report was submitted. Thereafter, once again, further
investigation was directed, and the Crime Branch conducted a fresh
investigation, which also concluded that the allegations were false, leading
to submission of yet another closure report.

4. It is contended that the informant filed a protest petition against the
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closure report, and the learned Magistrate, without due consideration of the
conclusions arrived at by the Investigating Officer, allowed the protest
petition and summoned all the petitioners under Section 190(1)(b) Cr.P.C.
for offences under Sections 307 and 307/34 IPC. Petitioner Nazim was
additionally summoned under Sections 3/25/27 of the Arms Act.Learned
counsel further submitted that the testimony of the doctor who prepared the
injury report is of great significance. The doctor expressed serious doubts
regarding the nature of the injury and was not convinced that the alleged
injury was caused by a firearm. It was specifically noted that the dimension
of the alleged entry wound was larger than the exit wound, which is
medically improbable. It is thus argued that once the foundational allegation
itself becomes doubtful, the summoning of the accused under Section
190(1)(b) Cr.P.C., by discarding the material collected during investigation
and placing reliance upon improved and unreliable statements of witnesses,
is wholly unsustainable.

5. It is further argued that the impugned order summoning the petitioners
under Section 190(1)(b) Cr.P.C. is contrary to the law laid down in
Abhinandan Jha vs. Dinesh Mishra, AIR 1968 SC 117 wherein it has been
held that a Magistrate, while disagreeing with a closure report, may take
cognizance under Section 190(1)(c) Cr.P.C. It is, therefore, contended that
taking cognizance under Section 190(1)(b) Cr.P.C. in the present facts is per
se illegal.It has also been submitted that the learned Trial Court has taken
into consideration an FSL report relating to a country-made firearm
allegedly recovered from petitioner Nazim, which does not form part of the
case diary and, therefore, could not have been relied upon. This law had
been clearly stated in Pakhandu and ors Vs State of U.P. and others,
MANU/UP/0911/2001. Lastly, it is submitted that Criminal Revision No.
172 of 2023, preferred by the petitioners against the order dated 21.09.2023,
was also dismissed on 10.10.2024, without proper appreciation of the facts
and settled legal principles applicable to the present case. It is thus
contended that both the courts below have failed to correctly appreciate the
material on record as well as the law governing the issue.

6. Learned AGA and learned counsel for the private respondent submitted
that the statements of the injured as well as the eye-witnesses are consistent
and stand duly corroborated by the medical evidence on record. It is
contended that the injured has categorically stated that he was shot by
petitioner Nazim, while the other accused persons had forcibly caught hold
of him at the time of the incident.It is further submitted that the statement of
the treating doctor is clear and specific to the effect that blackening and
singeing were present around the firearm injury sustained on the abdomen of
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                                 3

the injured, which supports the prosecution case. The FSL report further
lends support to the version of the prosecution, inasmuch as it indicates that
the firearm in question had been discharged from the country-made gun
allegedly recovered from petitioner Nazim. On the strength of the aforesaid
material, it is argued that there is no illegality or infirmity in the orders
passed by the courts below, and the same do not call for any interference.

7. Upon consideration of the rival submissions and material brought on
record, this Court finds that the injured has consistently stated that he
sustained a firearm injury on his abdomen and that the shot was fired by
petitioner Nazim. The said version finds substantial support from the
medical evidence. The treating doctor, Adarsh Sengar, has clearly stated that
blackening and singeing were present around the injury, which is indicative
of a firearm discharge. Though the doctor expressed certain doubts regarding
the dimensions of the entry and exit wounds, he has not given any
categorical opinion to the effect that the injury was not caused by a firearm.
It is a settled principle of law that the testimony of an injured witness carries
great evidentiary value, and unless it is in complete contradiction with the
medical evidence, the same cannot be discarded. In the present case, the
medical evidence does not negate the ocular version, but rather broadly
supports it.

8. So far as the FSL report is concerned, the same cannot be treated as
extraneous material merely on the ground that it was submitted subsequent
to the filing of the charge-sheet. Any material collected during investigation
does not lose its evidentiary relevance solely because it was not made part of
the case diary at the time of submission before the Court. Such material can
still be taken into consideration for the purposes of forming an opinion at the
stage of cognizance. Hence, judgement of Pakhandu (Supra) has no
relevance in this issue.

9. So far as the judgment in Abhinandan Jha (Supra) is concerned, the
Hon'ble Supreme Court has held that although a Magistrate cannot direct the
police to submit a charge-sheet, he is not bound by the opinion expressed by
the police in the final report and is competent to independently apply his
judicial mind to the material collected during investigation. If he disagrees
with the conclusion of the police, he may proceed to take cognizance under
Section 190 Cr.P.C. Further, in Bhagwant Singh vs. Commissioner of
Police, (1985) 2 SCC 537 it has been held that before accepting a final
report, an opportunity of hearing must be afforded to the informant, and the
Magistrate may either accept the report, direct further investigation, or take
cognizance of the offence.
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                                    10. The legal position has been further clarified in India Carat Pvt. Ltd. vs.
                                    State of Karnataka, (1989) 2 SCC 132 wherein it has been held that even
                                    where a final report is submitted, the Magistrate can take cognizance under
                                    Section 190(1)(b) Cr.P.C. on the basis of the material available in the police
                                    report and case diary, if such material discloses commission of an offence. It
                                    is not necessary to resort to Section 190(1)(c) Cr.P.C., as the cognizance in
                                    such a situation is still based on a "police report" within the meaning of law.
                                    Thus, where sufficient material exists, the Magistrate is justified in taking
                                    cognizance under Section 190(1)(b) Cr.P.C. and issuing process under
                                    Section 204 Cr.P.C., notwithstanding the contrary opinion expressed by the
                                    police.

                                    11. In view of the aforesaid, this Court is of the considered opinion that there
                                    exists sufficient material to proceed against the petitioners, and no illegality
                                    or perversity is found in the impugned orders passed by the courts below
                                    warranting interference in exercise of writ jurisdiction.

                                    12. Accordingly, the petition is dismissed.

                                    April 9, 2026
                                    Ujjawal
                                                                                               (Anil Kumar-X,J.)




Digitally signed by :-
UJJAWAL
High Court of Judicature at Allahabad