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Allahabad High Court · body

2009 DIGILAW 3328 (ALL)

MOLHU v. STATE OF U. P.

2009-10-23

RAJ MANI CHAUHAN

body2009
JUDGMENT RAJ MANI CHAUHAN, J.-Heard Sri Manoj Kumar Misra, learned Counsel for the accused applicants and learned A G.A for the State. 2. This application under section 482 Cr.P.C. has been filed by the accused applicants against the order dated 10.9.2009, passed by the learned Chief Judicial Magistrate, Gonda, by which he has rejected the final report submitted by the Investigating Officer in Case Crime No. 25-A of 2002, State v. Molhu and others, under sections 147, 323, 324, 352, 307 and 506 I.P.C. and summoned the accused applicants on the protest petition of the complainant. 3. In this case, the only question involved for consideration is the legality of the summoning order, passed by the learned Chief Judicial Magistrate, Gonda which can be decided without notice to the opposite party No.2, the complainant. Therefore, with the consent of learned Counsel for the accused applicants and learned A.G.A for the State, this application is being finally disposed of at the admission stage. 4. The relevant facts giving rise to the present application may be summarized as under: 5. The complainant Bajrangee (opposite party No.2), son of Gaya Prasad, resident of Sumahi, Police Station Gaur, District Basti, on 3.2.2002 at 18.40 hours lodged a written report at Police Station Chhapia, District Gonda with the allegation that on 22.1.2002 at about 10.00 a.m., when he was returning back his home on bicycle from Babhnan Sugar Mill, where he had gone in connection with his some personal work, accused Molhu and Prathvipal, son of Jagai, Ram Lagan, son of Gaya Prasad, Ram Naresh, son of Prathvipal, Sukhram, son of Molhu and Kesh Ram, son of Ram Lagan, all residents of Village Kihan, Police Station Gaur, District Basti, met him on the way who were waiting for him. They were already having enmity with him. Accused Sukh Ram-was armed with country made pistol, Kesh Ram was armed with knife and rest of the accused were armed with Lathi and Danda. When he reached in front of the house of Durga Battery Wale, the accused all of sudden came before him. Accused Molhu instigated the other accused to kill him. On exhortation of Molhu, Sukh Ram opened fire on him but fortunately the cartridge missed and it could not be shot out. The rest accused, thereafter, started to give him knife, Lathi and Danda blows. He raised alarm which attracted number of persons who intervened. Accused Molhu instigated the other accused to kill him. On exhortation of Molhu, Sukh Ram opened fire on him but fortunately the cartridge missed and it could not be shot out. The rest accused, thereafter, started to give him knife, Lathi and Danda blows. He raised alarm which attracted number of persons who intervened. However, he as well as Paras Yadav, resident of Village Armani, District Basti had sustained serious injuries. 6. On the written report of the complainant, the police of Police Station Chhapia, District Basti, registered a case under sections 147, 323, 324, 352, 307 and 506 I.P.C, at Crime No. 25-A of 2002 against the accused for investigation. 7. The Investigating Officer after investigation of the case submitted final report in the Court of Chief Judicial Magistrate, Gonda with the conclusion that there was no evidence in support of offences against the accused under the aforesaid Sections. The learned Chief Judicial Magistrate issued notice to the complainant on the final report submitted by the Investigating Officer, who appeared in response to the notice and filed an objection in the form of protest petition against final report. submitted by the Investigating Officer. The learned Chief Judicial Magistrate after going through the final report and the protest petition found that the Investigating Officer did not record the statements of the material witnesses specially the injured and the doctor who had medically examined the injured. He had ignored to record the statements •of material witnesses acquainted with the facts of the case and submitted final report in an arbitrary manner. He, therefore, rejected the final report." Learned Chief Judicial Magistrate found that a cross case of the occurrence which Was registered at Crime No. 25 of 2002 was pending in the Court, therefore, he thought it proper to summon the accused. Consequently, learned Chief Judicial Magistrate by the impugned order rejecting the final report summoned the accused for committing offences under sections 147, 323,324,352,307 and 506 I.P.C. 8. The accused applicants being aggrieved by the impugned order, passed by the learned Chief Judicial Magistrate, Gonda, have filed the present application under section 482 Cr.P.C. before this Court to quash the impugned summoning order. The accused applicants being aggrieved by the impugned order, passed by the learned Chief Judicial Magistrate, Gonda, have filed the present application under section 482 Cr.P.C. before this Court to quash the impugned summoning order. The submission of the learned Counsel for the accused applicants is that section 190 (1) of the Code of Criminal Procedure (hereinafter referred to as 'Code') lays down three modes of taking cognizance of any offence by the Magistrates. The first mode is upon receiving a complaint of facts; [Section 190 (1) (a)]. Second mode is upon a police report of such facts constituting the offence; [Section 190 (1) (b)] and third mode is upon information received from any person other than a police officer, or upon his own knowledge, [Section 190 (1) (c)]. But in this case from a perusal of the impugned order, it does not appear under what provision, learned Chief Judicial Magistrate had taken cognizance of the offence against the accused applicants. 9. Learned Counsel for the accused applicants further contends that when the Investigating Officer submits final report after investigation of the cognizable offence, there are four options before the Magistrate: (1) The first option before the learned Magistrate is that he agreeing with the conclusions arrived at by the Investigating Officer, accept the final report and drop the proceedings but before acceptance/ dropping, he will have to give notice to the complainant to file objection/ protest petition against the final report. (2) The second option before the learned Magistrate is that if he after going though the evidence collected by the Investigating Officer available on the case diary, finds that there are sufficient material on the case diary in support of the offence alleged to have committed by the accused, he can straightway take cognizance of the offence under section 190 (1) (b) of the Code and summon the accused. (3) The third option before the learned Magistrate is that if he finds that the Investigating Officer has not collected the sufficient evidence or he has not properly investigated the case and there is no material against the accused on the case diary, he can order for further investigation under section 173 (8) of the Code. (3) The third option before the learned Magistrate is that if he finds that the Investigating Officer has not collected the sufficient evidence or he has not properly investigated the case and there is no material against the accused on the case diary, he can order for further investigation under section 173 (8) of the Code. (4) The fourth option before the learned Magistrate is that if he finds that there is no material on the case diary in support of the offence against the accused, he can treat the protest petition as complaint and take cognizance of the offence under section 190 (1) (a) of the Code. Thereafter, he will have to follow the procedure as laid down under sections 200 and 202 of the Code i.e. he will have to record the statements of the complainant under section 200 of the Code and statements of witnesses under section 202 of the Code. 10. The learned Counsel contends that from a perusal of the impugned order, it is not clear whether the learned Chief Judicial Magistrate had taken cognizance of the offence either under section 190 (1) (a) or under section 190 (a) (b) of the Code. The learned Chief Judicial Magistrate had found that the Investigating Officer overlooked to record the statement of the material witnesses like injured and medical officer who had medically examined the injured. He has observed that the Investigating Officer had investigated the Case in an arbitrary manner. It was; therefore, open to the learned Chief Judicial Magistrate either to direct the Investigating Officer for further investigation or to proceed to take cognizance on the protest petition of the complainant treating the same as complaint. If the learned Chief Judicial Magistrate had treated the protest petition of the complainant as complaint he was required to record the statement of the complainant under section 200 of the Code and, thereafter, statement of the witnesses under section 202 of the Code but he did not opt to proceed in the manner as laid down under section 200 or 202 of the Code. In this way, it is clear from the impugned order that neither there was any evidence against the accused on the case diary nor learned Chief Judicial Magistrate had recorded the statements of the complainant under section 200 of the Code and his witnesses under section 202 of the Code. In this way, it is clear from the impugned order that neither there was any evidence against the accused on the case diary nor learned Chief Judicial Magistrate had recorded the statements of the complainant under section 200 of the Code and his witnesses under section 202 of the Code. The case under section 307 I.P.C. is exclusively triable by the Court of Sessions, therefore, learned Chief Judicial Magistrate was required to record the statements of all the witnesses under section 202 of the Code but he ignoring the provision of sections 200 and 202 of the Code straightway summoned the accused without any evidence rejecting the final report. The impugned order passed by the learned Chief Judicial Magistrate is, therefore, illegal and liable to be set aside. 11. The learned Counsel for the accused applicants in support of his argument has placed reliance on the cases Pakhandll and others v. State of U.P. and another/ Neeraj Tyagi v. State of U.P. and others/ and Mohammad Ahmad @ Lallll v. State of U.P. and another, decided by the Allahabad High Court. 12. The learned A.G.A. sl1Fporting the impugned order argued that the impugned order passed by the learned Chief Judicial Magistrate is perfectly legal. The learned. A.G.A. submits that when the Investigating Officer submits the final report after investigation of the case, such report will be treated as police report under section 173 (2) of the Code. Section 173 (2) of the Code contemplates only submission of police report which includes charge-sheet as well as final report. The Magistrate after receiving final report submitted by the Investigating Officer is fully competent to take cognizance of the offence under section 190 (1) (b) of the Code on police report. In this case, learned Chief Judicial Magistrate, after going though the final report as well as case diary and the protest petition filed by the complainant had found that there was sufficient evidence against the accused in support of the offence under sections 147, 323, 324, 352, 307 and 506 I.P.C. consequently, he had taken cognizance of the offences under section 190 (l)(b) of the Code i.e. on police report. Therefore, impugned order passed by the learned Chief Judicial Magistrate is perfectly justified and does not call for any interference. Therefore, impugned order passed by the learned Chief Judicial Magistrate is perfectly justified and does not call for any interference. I have given thoughtful consideration to the submission of the learned Counsel for the accused applicants and the learned A.G.A. as well as gone though the case laws cited by the learned Counsel for the accused applicants. I agree' with the submissions of the learned Counsel for the accused applicants. 13. At this stage, it will be relevant to mention the provisions laid down under section 190 (1) of the Code for taking cognizance of the offence by the Magistrates, which is being extracted here-in-below: "190. Cognizance of offences by Magistrates.-(l) Subject to the provisions of this Chapter, any Magistrate of the first class, and arty Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed." 14. In the case of Pakhandu and others (supra), the Division Bench of this Court after considering the case laws and the Principles of law laid down by the Hon'ble Apex Court in Ablzinandan Jha v. Dinesh Misra, U.S. Bains v. State, M/s. India Carat Pvt. Ltd. v. State of Kamataka, and Tularam v. Kishan Singh has observed that when an Investigating Officer files final report after investigation of the cognizable offence in the Court of Magistrate, empowered to take cognizance, the learned Magistrate will have four options, which are as follows: (1) He may agree with the conclusions arrived at by the Investigating Officer and accept the final report submitted by him and drop the proceedings. But before doing so, he shall give an opportunity of hearing to the complainant; or (2) He may take cognizance under section 190 (1) (b) of the Code and issue process straightway to the accused ignoring the conclusion of the Investigating Officer; or (3) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (4) He may, without issuing process or dropping the proceedings, take cognizance under section 190 (1) (a) of the Code upon the original complaint or protest petition treating the same as complaint and proceed to act 'under sections 200 and 202 of the Code and thereafter he will decide whether complaint should be dismissed or process should be issued. 15. The relevant observation of the Court finds place in para 15 of the Judgment which is being extracted below: "(15) From the aforesaid decisions. It is thus clear that where the Magistrate receives the final report four courses are open to him and he may adopt anyone of them as the facts and circumstances of the case may require: (1) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (2) He may take cognizance under section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the Investigating Agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or ' (3) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (4) He may, without issuing process or dropping the proceedings, decide to take cognizance under section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under sections 200 and 202 Cr.P.C. and thereafter decided whether complaint should be dismissed or process should be .issued." 16. The principle of law laid down by this Court in the above cited case has been followed by the Court in Neeraj Tyagi v. State of U.P. and others and Mohammad Ahmad @ Lallu v. State of U.P. and another. 17. The principle of law laid down by this Court in the above cited case has been followed by the Court in Neeraj Tyagi v. State of U.P. and others and Mohammad Ahmad @ Lallu v. State of U.P. and another. 17. Now in this case, it has to be seen as to what course out of four courses open to the learned Chief Judicial Magistrate as mentioned above, he had adopted. The learned Chief Judicial Magistrate in the impugned order had observed that the complainant has alleged that accused armed with country made pistol, knife Lathi and Danda formed an unlawful assembly. They in prosecution of the common object of such assembly caused injures to the complainant as well as Paras Yadav. The Investigating Officer without recording the statement of the medical officer who had medically examined the injured had concluded that the medical, examination reports were fabricated. He did not record the statement of the injured too while they were material witnesses. He ignoring to record the statements of the material witnesses concluded the investigation in an arbitrary manner and submitted final report in the matter. The cross case against the complainant and others was also pending in the Court, therefore, he found it proper to summon the accused for the aforesaid offence. 18. From a perusal of the observations of the learned Chief Judicial Magistrate, as referred above, it appears that he was of the view that the Investigating Officer had conducted the investigation in an arbitrary manner. He did not collect the material evidence during investigation. In view of these facts, one of the option available to the learned Chief Judicial Magistrate was to direct the Investigating Officer for further investigation under section 173 (8) of the Code. No doubt, learned. Chief Judicial Magistrate could take cognizance of the offence on the basis of materials available on the case diary against the accused but the observation of the learned Chief Judicial Magistrate clearly shows that Investigating Officer did not collect the material evidence i.e. he did not record the statement of the material, witnesses like injured and the medical officer who had medically examined the injured. He, therefore; could not take cognizance of the offence on the basis of material available on the case diary i.e. on police report. He, therefore; could not take cognizance of the offence on the basis of material available on the case diary i.e. on police report. It is clear that learned Chief Judicial Magistrate had not taken cognizance of the offence under section 190 (1) (b) of the Code. 19. The next option before the learned Chief Judicial Magistrate was that he could proceed on-the protest petition of the complainant treating the same as complainant. He was then required to proceed in the manner as provided under section 200 or 202 of the Code i.e. he was required to record the statement of the complainant under section 200 of the Code and the statements of all the witnesses under section 202 of the Code as the offence complained of under section 307 I.P.C. was exclusively triable by the Court of Sessions. The learned Chief Judicial Magistrate did not follow this procedure too. 20. From a perusal of the impugned order, it is not clear under which of the three modes referred in section 190 (1) of the Code, the learned Chief Judicial Magistrate had opted to take cognizance of the offences against the accused. Although, it was not required for the learned Chief Judicial Magistrate to mention the specific provision under which he was proceeding to take cognizance of the offences but the order must reflects under which of 'the three modes, he had proceeded to take cognizance of the offences. It is not clear whether learned Chief Judicial Magistrate had taken cognizance of the offences on the protest petition i.e. complaint under section 190 (1) (a) of the Code or the police report under section 190 (1) (b) of the Code. 21. There was no other evidence on record against the accused in support of offence under sections 147, 323, 324, 452, 307 and 506 I.P.C., therefore, learned Chief Judicial Magistrate could not summon them. The impugned summoning order passed by the learned Chief Judicial Magistrate, Gonda against the accused applicants is contrary to the provision of law which is liable to be set aside and the matter requires to be remanded back to the learned Chief Judicial Magistrate, Gonda to pass a fresh order. 22. The impugned summoning order passed by the learned Chief Judicial Magistrate, Gonda against the accused applicants is contrary to the provision of law which is liable to be set aside and the matter requires to be remanded back to the learned Chief Judicial Magistrate, Gonda to pass a fresh order. 22. In view of the observation made above, the application is allowed and the impugned order dated 10.9.2009, passed by the learned Chief Judicial Magistrate, Gonda rejecting the final report submitted by the Investigating Officer and summoning the accused applicants for the offence under sections 147,323,324,452,307 and 506 I.P.C. is set aside. The learned Chief Judicial Magistrate, Gonda is directed to proceed afresh on the protest petition of the complainant and decide the same after affording opportunity of hearing to the complainant, in the light of the observation made in the judgment. Application Allowed.