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1988 DIGILAW 413 (ALL)

Shabir Ali v. State Of U. P.

1988-04-18

V.P.MATHUR

body1988
JUDGMENT V.P.Mathur 1. This criminal revision is directed against the order passed by Mr. R. S. Misra, Judicial Magistrate, Mirzapur on 3-12-1986 in criminal case no. 83 of 1986 State v. Shaukat Ali and others through which he has summoned the applicant and others for offences punishable under sections 147 148, 149 and 323 of the IPC. 2. Briefly stated the facts are that Imamul Haq opposite party no. 2 had filed a first information report in respect of a cognizable offence under sections 147, 148 and 149 IPC and some other offences. An investigation was made and a final report was submitted. This final report was accepted by the learned Magistrate after which a protest petition was moved along with some affidavits and the learned Magistrate passed the impugned order dated 3-12-1986 taking cognizance of the matter and straightway summoning the applicant and others to stand their trial for the offences complained of. The contention of the revisionist is that after accepting the final report once, the Magistrate was not entitled to take cognizance of the case and in any view of the matter if a cognizance had to be taken, it could be taken under section 190 (1) (b) of the Code of Criminal Procedure treating the protest petition as a complaint and the procedure of the complaint cases had to be followed i.e. statement under section 200 CrPC had to be recorded and then the Magistrate had to decide whether he wanted to proceed forthwith or to enquire into the matter himself or through some other agency. It is contended that it was not open to the learned Magistrate to proceed by summoning the petitioner and others straightway as is done in cases of police report. Two important points for decision arise in this case : namely (i) whether after once accepting a final report, the Magistrate can under any circumstance proceed with the case under section 190 (1) of the Code of Criminal Procedure; (ii) Whether it is possible for the Magistrate to proceed under section 191 (1) (a) or (b). 3. In the case of Munilal Thakur v. Nawal Kishore Thakur, 1985 CrLJ 437 Patna High Court considered a similar case. 3. In the case of Munilal Thakur v. Nawal Kishore Thakur, 1985 CrLJ 437 Patna High Court considered a similar case. The question before the Division Bench was whether a Magistrate even after accepting the final report filed by the police can still take cognizance of an offence upon a complaint or a protest petition on the same or similar allegations of fact. The Division Bench of Patna High Court looked into the law laid down in the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 , and the case of Tula Ram v. Kishore Singh, AIR 1977 SC 2401 ; as also the case of H. S. Bains v. State (Union Territory of Chandigarh), AIR 1980 SC 1883 = 1980 AWC 619 = 1980 ACrR 423 and after considering all these cases as well as the Supreme Court case of Gopal Vijay Verma v. Bhumeshwar Prasad Sinha, (1982) 3 SCC 510 came to the conclusion that even after accepting a final report once, the Magistrate can take cognizance on the basis of the complaint petition. 4. The most important case for consideration before the Division Bench was of Gopal Vijay Verma (supra). This was a matter which went to the Supreme Court against a Single Judge decision of the Patna High Court in the matter of Bhumeshwar Prasad Sinha v. State of Bihar, 1981 CrLJ 795 . A question identical with the present was one raised before a single Judge of the Court. The learned Judge while quashing the cognizance of the offence, made the following observation : "If the Magistrate takes cognizance on the basis of the complaint petition then in that case he should not accept the final form. If once he accepts the final form then on the same facts constituting the offence, he is not entitled to take cognizance on the basis of the complaint petition or protest petition because that will result in two inconsistent orders passed by the Judicial Officer. " It was also observed with reference to Abhinandan Jha's case (supra) :- In that case it has been held by the Supreme Court that if the Magistrate agrees with the opinion of the police, he may accept the final report and close the proceedings. " It was also observed with reference to Abhinandan Jha's case (supra) :- In that case it has been held by the Supreme Court that if the Magistrate agrees with the opinion of the police, he may accept the final report and close the proceedings. It will be deemed that the proceedings against the accused persons in respect of the facts constituting the offence have been closed by the Magistrate in a judicial proceeding. If it is so, such proceeding can only be set aside in revision by a higher authority. Unless and until the order is not set aside, the Magistrate is not entitled to take cognizance on the basis of the complaint petition or protest petition in respect of the same facts constituting the offence as mentioned in the final form............ " Against this order, an appeal was taken before the Supreme Court in the matter of Gopal Vijay Verma, 1982 (3) SCC 510 (supra). It came up before a Bench presided over by Chinnappa Reddy, J. who, as will be noticed, was also a party to the judgment in the case of H. S. Bains, 1980 AWC 619 = 1980 ACrR 423 (supra). Categorically reversing the High Court's order Their Lordships summarily disposed of the matter by the following order : "The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report- The order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law.........." It means, therefore, that the view that once a final report is accepted, the Magistrate who acts judicially can not proceed against the accused persons in respect of the facts constituting same offence under any circumstances whatsoever and even on a complaint petition, because, if he does so, he would be acting against his previous order, closing the proceedings, is not a correct view of the matter The Supreme Court is of the view, inspite of the cases of H. S. Bains and Abhinandan Jha (both supra) that the Magistrate can take cognizance of the case upon a complaint, even if he had earlier refused to take cognizance " 5. This bring us to the consideration of an another aspect of the matter. This bring us to the consideration of an another aspect of the matter. It is whether in such circumstances cognizance can be taken only on a complaint or a protest petition which may amount to complaint and in no other way. There is a Division Bench case of this High Court in the matter of Pradyum Narain Pandey v. State, 1968 ALJ 768. The brief facts of the matter were that one Bechan son of Mahavir had lodged a report at police station disclosing an offence under section 325 IPC. An investigation was made and the police submitted a report under section 169 CrPC which final report was accepted by the learned Magistrate. Then the informant moved an application after about 19 days before the Court concerned praying that the accused persons be summoned on the basis of the report and the connected papers submitted by the police. This application was allowed and the learned Magistrate directed issue of summonses to the accused persons. Aggrieved by this order, an application in revision was preferred by Pradyum Narain Pandey, one of the accused persons, which was rejected by the learned Additional District and Sessions Judge, Gorakhpur. Then a revision came up before this High Court and since there was some conflict of opinion, the matter was referred to a larger Bench. A Division Bench in this case framed three questions for decision : Question no. 1 is relevant for the present purpose and it is as follows : 1. Whether it is open to a Magistrate to take cognizance of an offence after having accepted a report submitted by the police under section 169 of CrPC relating to that offence ? It may however be mentioned that so far as Questions nos. 2 and 3 were concerned, they are not relevant for the present enquiry, and moreover the answer to Question no. 2 does not lay down a law which is good now. In view of amendment in the Code of Criminal Procedure sub-section (c) of Section 190 (1) through which the earlier provision of suspicion of the Magistrate has been deleted. The Division Bench made the following observation in connection with the decision of Question no. 2 does not lay down a law which is good now. In view of amendment in the Code of Criminal Procedure sub-section (c) of Section 190 (1) through which the earlier provision of suspicion of the Magistrate has been deleted. The Division Bench made the following observation in connection with the decision of Question no. 1: "Even if Magistrate is held to exercise judicial functions in taking cognizance of a case there does not appear to us to be any bar to his taking cognizance of a case on second thought after having accepted the final report once. The order approving the report under section 169 of the CrPC is not an order of acquittal and section 403 of the CrPC can possibly have no application to the question under consideration. The aforesaid order again is not even an order of discharge and it is significant that a fresh complaint is entertainable on the passing of an order of discharge. If a fresh complaint can be filed after an order of discharge, it should in our opinion, be open to a Magistrate to take cognizance of a case on second thought after having accepted the final report under section 169 of CrPC." A reference was made to the case of Mahavir Prasad Agarwala v. State, AIR 1958 Orissa 11 wherein it was held that if at one stage a Magistrate even accepts the final report and does not wish to proceed with the matter further, but subsequently either new facts come to light or after hearing the parties and perusing the papers available he finds that on the previous occasion he had overlooked an important aspect of the case, it is open to him to revise his earlier order. 6. This Division Bench law remains good law even now and the case of H. S. Bains v. State (Union Territory of Chandigarh) and Abhinandan Jha v. Dinesh Mishra mentioned above do not lay down any thing against it. As I have already mentioned earlier in the matter of Gopal Vijay Verma (supra) the Supreme Court has already held that even though the order of the Magistrate may be treated as a judicial order, the Magistrate would still be justified in taking cognizance of a case even after earlier refusing to take cognizance on the police report. As I have already mentioned earlier in the matter of Gopal Vijay Verma (supra) the Supreme Court has already held that even though the order of the Magistrate may be treated as a judicial order, the Magistrate would still be justified in taking cognizance of a case even after earlier refusing to take cognizance on the police report. The case of Pradyum Narain Pandey 1968 ALJ page 768 (supra) only extends the law laid down in the case of Gopal Vijay Verma and the legal position now is : Even after once accepting a final report submitted by the police, the Magistrate can take cognizance of the case either (i) on the protest petition treating it as a complaint or (ii) on the police report itself if he comes to the conclusion on the basis of new facts or after hearing the parties and perusing the papers that are made available to him that on the previous occasion he had over-looked some important aspect of the case and he can revise his earlier order. In the first contingency he has to proceed on the protest petition and hence the procedure prescribed for a complaint case has to be undergone. In the second case the cognizance is again taken on the police report itself and it will be a cognizance under section 190(1)(b)of the Code of Criminal Procedure and straightway summonses can be issued. In the light of this legal position when we peruse the facts and circumstances of the present case, we find that after the learned Magistrate had accepted a final report, a protest petition along with some affidavits was filed before him. He considered the same and also perused the police report which was submitted earlier and was accepted by him. With the police report, the first information report and the medical examination report showing injuries on the persons of Nanhey and Imamul Haq, Mobin and Imran were also perused and the Court came to the conclusion that there was a prima facie case. It would clearly be taking cognizance on the police report as a result of second thought, which is permissible under the law and the cognizance being under section 190 (1) (b) of the CrPC the Magistrate will be perfectly justified to straightway summon the accused without resorting to the procedure laid down in sections 200 and 202 of the CrPC. 7. 7. This being the situation the revision has no force and stands dismissed accordingly and the stay order granted by this Court on 25-1-1988 stands vacated. 8. This order shall be transmitted to the learned Magistrate concerned forthwith so that he may proceed with the matter expeditiously. This is necessary in order to ensure that this case as well as the cross- case which is already before the Sessions Judge concerned, are heard by the same court one after the other and the judgments in both the cases are passed on the same date. Revision dismissed.