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Allahabad High Court · body

2013 DIGILAW 1533 (ALL)

Raees v. State of U. P.

2013-05-23

AJAI LAMBA

body2013
JUDGMENT Ajai Lamba, J. – This petition has been filed under Section 482 , Cr.PC. with the prayer that order of summoning dated 8-12-2011, Annexure No. 1, whereby petitioners have been summoned to stand trial for commission of offence under Section 395, I.P.C. in Complaint Case No. 1207 of 2011, Mohd. Ismail v. Raes & Ors., pending in the Court of Judicial Magistrate, Pratapgarh, be quashed. 2. Petition also challenges the complaint. Petition also challenges order passed by the revisional Court dated 3- 7-2012 (Annexure No. 2), vide which order of summoning has been upheld. 3. Contention of learned Counsel for the petitioners is that prejudice has been caused to the rights of the petitioners because the impugned complaint was filed by respondent No. 2, while proceedings were pending under police case. 4. While giving the facts, it has been brought out that an occurrence took place on 8-6-2011, wherefor respondent No.2 made a complaint on the same date. F.I.R. was registered on 10-6-2011. The investigation was concluded in two days and final/cancellation report was prepared on 12-6-2011. 5. The facts as they emerge from the revisional Court order, Annexure No. 2, are that the final report was filed in Court on 30-6-2011. The complainant/respondent came to know about the filing of Final/Cancellation report through Court on 30-6-2011. The respondent/complainant filed petition against the Final/Cancellation report on 23-6-2011 with an application that the case be taken up alongwith the complaint case already filed by the complaint. 6. Although respondent No. 2 had initiated proceedings under a police case, yet, without waiting for the result or without following due, process of law/provision in Code of Criminal Procedure impugned complaint was filed in regard to the same incident against the same accused on 16-7-2011. 7. It has been argued that the Magistrate without referring to the material available on the final report has passed the summoning order which has caused prejudice. Ordinarily, under provisions of Section 210, Cr.P.C., when a case is instituted otherwise than on a police report i.e. complaint case and it is made to appear to the Magistrate that investigation by the police is in progress the Magistrate is required to stay the proceedings in such complaint case to await the investigation report. Ordinarily, under provisions of Section 210, Cr.P.C., when a case is instituted otherwise than on a police report i.e. complaint case and it is made to appear to the Magistrate that investigation by the police is in progress the Magistrate is required to stay the proceedings in such complaint case to await the investigation report. Under sub-section (2) of Section 210, Cr.P.C. If a report is made by the investigating police officer under Section 273, Cr.P.C. and on such report, cognizance of any offence is taken by the Magistrate against any person who is the accused in the complaint case, the Magistrate is required to inquire into or try together the complaint case and the case arising out of police report as if both the cases were instituted on a police report. Considering the said provision, it has been argued that spirit of law is that the Magistrate should get the benefit of the police investigation also while considering the facts and circumstances of the case and before any further orders are passed. 8. In this case, not a reference has boon made to the police report or the findings recorded therein. It has been argued that in case the Magistrate had known the reasons for which final report had been filed, the result might have been different. In the case, in hand, the Magistrate has issued the order of summoning only on the strength of statement of interested witnesses recorded under Sections 100 and 202, Cr. P. C., while other material from the police report was available on record. 9. Learned Counsel has drawn attention of the Court towards the final report, placed on record as Annexures-7 and 8, dated 12-6-2011. It has been pointed out that shop in question was owned by Mohd. Mansoor and was on lease with respondent No. 2, Mohd. Ismail, Mohd. Ismail wanted to purchase the shop and, therefore, had given some money to Mohd. Mansoor. however, the entire sale consideration could not be paid. 10. Saiyada Bano, wife of the petitioner No. 1, purchased the shop from Mohd. Mansoor vide a sale-deed. It is re corded in the report that Mohd. Mansoor returned the money to Mohd. Ismail. 11. Under the changed ownership, Mohd. Ismail was required to vacate the shop and hand over the possession to Saiyada Bano, Mohd. 10. Saiyada Bano, wife of the petitioner No. 1, purchased the shop from Mohd. Mansoor vide a sale-deed. It is re corded in the report that Mohd. Mansoor returned the money to Mohd. Ismail. 11. Under the changed ownership, Mohd. Ismail was required to vacate the shop and hand over the possession to Saiyada Bano, Mohd. Ismail, respondent No. 2, was agitated because Saiyada Bano had purchased the shop and, therefore, the incident has been created so as to pressurize the petitioners. It is, in these circumstances, that the incident has been found to be false and final/cancellation report has been filed. 12. Learned Counsel appearing for respondent No.2, complainant has not been able to dispute the contents of the final report, or the sequence of events, as noted above. 13. A reference to the order passed by the revisional Court dated 3-7-2012 indicates that indeed the fact that a police report had been filed, was brought to the notice of the Magistrate, directed the police report file to be appended with the complaint case and therefore, the Magistrate proceeded with the case and summoned the petitioners-accused. 14. Learned Counsel appearing for the respondent-complainant has argued that an incident has taken place in regard to which petitioners have been summoned. No cause to interfere in the matter under Section 482 , Cr.P.C. is made out. 15. I have heard the learned Counsel and have gone through the relevant documents. 16. It transpires that investigation had been conducted in regard to the incident and the incident has been found to be false, for the reasons given in the final/cancellation report. It is further established from the record that the final report/police report was available with the Magistrate, at the point in time when the matter was considered as to whether the petitioners should be summoned to stand that or not. The record further makes it evident that the Magistrate did not refer to the con tents of the police report or the basis of filing final report. 17. In view of the above, it cannot be said that the contention of learned Counsel for the petitioners is frivolous. The record further makes it evident that the Magistrate did not refer to the con tents of the police report or the basis of filing final report. 17. In view of the above, it cannot be said that the contention of learned Counsel for the petitioners is frivolous. Once the Magistrate knew about the reasons for filing final report by the investigating agency, those facts became relevant for Adjudication in the matter the facts having not been considered or referred to clearly indicate non-application of mind by the Magistrate to the relevant documents available on record. 18. The provisions of Section 210 requires the complaint case to .heard with the police case. 19. In the present case, investigation was conducted under Chapter XII of the Code of Criminal Procedure, by the police in regard to the incident in question subject-matter of the criminal complaint. The investigation report/final report, thus, is in regard to the incident at issue. Police/investigating agency has wide powers to investigate an offence under Chapter XII of the Code of Criminal Procedure. Employing those powers, a report is filed before the Magistrate. The Magistrate was considering the incident at issue and because the police report was available with the Magistrate, it was required that the Magistrate at least refer to the police report before summoning the accused in the complaint case. The police report cannot be termed as irrelevant in context of the incident because, the incident is common and the are common in the police case as also in the criminal complaint case. After referring to the report, the Magistrate would be at liberty to exercise his discretion judicially to either summon the accused or dismiss the complaint. The Magistrate having not considered/referred to the police report, surely committed illegality in proceeding with the matter. 20. In view of the above, the petition -Is allowed. Order dated 8-12-2011 (Annexure-1) and order dated 3-7-2012 (An-nexure-2), are hereby quashed. 21. The case is remanded back to the Magistrate directing him to take note of what has been stated above and re-adjudicate on the matter, after making reference to the relevant facts and circumstances as they emanate from the entire record. 22. In view of the delay already caused, the concerned Magistrate is requested to pass orders afresh within two months of receipt of copy of the order. Parties are directed to appear before the Magistrate on 22-4-2013. 22. In view of the delay already caused, the concerned Magistrate is requested to pass orders afresh within two months of receipt of copy of the order. Parties are directed to appear before the Magistrate on 22-4-2013. Petition allowed.