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2010 DIGILAW 3264 (ALL)

Syed Abrar Hussain v. State of U. P. and another

2010-10-21

SUBHASH CHANDRA AGARWAL

body2010
Subhash Chandra Agarwal, J.:- This petition under Article 226 of the Constitution of India has been field with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 23.8.2010 passed by the Addl. Sessions Judge, Court No. 6, Aligarh (Annexure no. 6 to the writ petition). 2. No notice is issued to private respondent in view of the order proposed to be passed today, however, liberty is reserved for private respondent to apply for variation or modification of this order if he feels so aggrieved. 3. Heard learned counsel for the petitioner, learned AGA for the State and perused the material available on record. 4. With the consent of parties, the writ petition is being heard finally. 5. The petitioner is the complainant. He lodged the FIR against respondent no. 2 on 24.10.2005, which was registered as case crime no. 788 of 2005, alleging therein that the respondent no. 2 is a history-sheeter of P.S. Raya and had obtained arms licence showing false address. Respondent no. 2 is the original resident of village Milak Bikanu, P.S. Raya, District- Mathura but he obtained arms licence on a address of District- Aligarh. The case was investigated by the police. Final report was submitted. C.J.M. Aligarh by order dated 28 November, 2007 directed further investigation. After further investigation, the police again submitted final report. The petitioner -complainant filed protest petition and also filed documents. C.J.M. vide order dated 25th January, 2010 rejected the final report, accepted the protest petition and considering the documents filed by the complainant, took cognizance and summoned the accused -respondent no. 2 to face trial under Sections 467, 468, 471, 420 IPC. 6. Respondent no. 2 preferred criminal revision no. 91 of 2010 against the summoning order, which was allowed by Addl. Sessions Judge, Court No. 6, Aligarh vide judgment and order dated 23.8.2010 and the Magistrate was directed to reconsider the protest petition after treated the same as complaint. Hence this petition. 7. Learned counsel for the petitioner submitted that learned trial court did not commit any error or illegality in summoning the respondent no. 2 to face trial and rightly relied upon the documentary evidence produced by the complainant and the revisional court was not justified in quashing the summoning order and directing reconsideration. Hence this petition. 7. Learned counsel for the petitioner submitted that learned trial court did not commit any error or illegality in summoning the respondent no. 2 to face trial and rightly relied upon the documentary evidence produced by the complainant and the revisional court was not justified in quashing the summoning order and directing reconsideration. It was further submitted that learned Magistrate could have taken cognizance under Section 190 (1) (c). 8. Reliance has been placed on a decision of the Apex Court in Har Prasad and another Vs. Ranveer Singh and another, JT 2008 (2) S.C. 261 wherein it was held that a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicision that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under section 190 (1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. 9. This ruling does not help the petitioner in any manner. In case before the Apex Court, the learned Magistrate passed an order of taking cognizance on the basis of police report and not on the basis of protest petition and the High Court held that the same was legal and proper and the Apext Court dismissed the appeal holding that the factual position found by the High Court did not call for any interference. 10. In Pakhando & others Vs. State of U.P. & another, 2001 (43) ACC 1096 : 2001 (3) ACR 2541 , a division bench of this Court has held that on receipt of final report and the protest petition, the Magistrate has the following four courses open to him :- (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 pretest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. 11. In the instant case, the Magistrate did not take cognizance on the basis of report submitted by the police, nor the final report was accepted nor further investigation was directed. The only course left for the Magistrate was to treat the protest petition as complaint and to adopt the procedure prescribed for complaint cases. Learned Revisional Court has rightly held that the Magistrate could not have taken cognizance on the basis of documents filed by the complainant unless the protest petition was treated as complaint. The cognizance could have been taken by the Magistrate under Section 190 (1) (b) Cr.P.C., if there was sufficient material in the police report for summoning the accused. The cognizance could have been taken under Section 190 (1) (a) Cr.P.C. if the protest petition was treated as a complaint and the Magistrate had proceeded under Section 200 and 202 Cr.P.C. Without adopting the procedure prescribed for complaint cases, the documents submitted by the complainant alongwith the protest petition could not have been considered by the Magistrate. 12. In these circumstances, learned Sessions Judge rightly set aside the summoning order and directed the Magistrate to adopt the procedure prescribed for complaint cases. The reference of Section 190 (1) (c) is absolutely irrelevant. The order was not passed by the Magistrate upon his own knowledge or upon information received from a stranger. The complainant cannot be said to be a stranger. 13. In view of the aforesaid, I do not find any error or illegality in the order passed by the learned Addl. Sessions Judge. The order was not passed by the Magistrate upon his own knowledge or upon information received from a stranger. The complainant cannot be said to be a stranger. 13. In view of the aforesaid, I do not find any error or illegality in the order passed by the learned Addl. Sessions Judge. The writ petition is devoid of merit and is accordingly dismissed.