Full Judgment
Ravindra Singh, J.
1. Heard Sri Arun Kumar Srivastava and Sri H.V. Shastri learned counsel for the petitioner and learned A.G.A.
2. This petition has been filed against the order-dated 4.9.2004 passed by learned Judicial Magistrate, Nazibabad, district Bijnor, whereby final report was accepted and the order-dated 23.12.2004 passed by the learned Sessions Judge, Bijnor in Criminal Revision No. Nil of 2004 whereby the revision filed by the petitioner was dismissed. It is contended by learned counsel for the petitioner that the petitioner has lodged the F.I.R., which was investigated by the police. After completion of the investigation final report was submitted by the I.O. Against that final report notice was issued to the petitioner by the learned Magistrate, but he did not filed protest petition in the court concerned. Thereafter, the learned Magistrate accepted the final report only on the ground that the petitioner did not appear in the court to file protest petition against the final report. The impugned order is illegal because it was passed without considering the evidence collected by the I.O..
3. It is opposed by the learned A.G.A. by submitting that the petitioner has accepted notice sent by the learned Magistrate even then he did not appear in the court to file the protest petition against the final report. It shows that he was not having any objection against the final report. Therefore, the learned Magistrate passed perfect order.
4. From perusal of the record it appears that notice was issued to the petitioner by the learned Magistrate, but deliberately he did not appear in the court to file the protest petition against the final report. Thereafter, learned Magistrate accepted the final report only on the ground of non-appearance of the petitioner and he has not filed any protest petition. But the learned Magistrate has not perused and considered the evidence collected by the I.O. and he did not apply his judicial mind to see whether on the basis of the evidence collected by the I.O. prima facie any offence is made out or not or there was sufficient material before him to proceed further against the accused persons. The learned Magistrate is under obligation to consider the case diary to see whether any offence is made out against the accused persons on the basis of the evidence collected by the I.O. or there is sufficient material to proceed further against the accused persons even the protest petition is not filed by the first informant against the final report, but the learned Magistrate has not considered the same, therefore, the impugned order dated 4.9.20004 passed by the learned Magistrate is illegal. The learned Sessions Judge also did not apply his judicial mind to consider this aspect; therefore, the order-dated 13.12.2004 passed by the learned Sessions Judge is also illegal. Therefore, the above-mentioned impugned orders are set aside. However, the learned Judicial Magistrate, Nazibabad is directed to pass a fresh order on the Final Report No. 70 of 2004, after considering the evidence collected by the I.O., in accordance with the provision of law.
5. With this observation this petition is finally disposed of.