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2013 DIGILAW 836 (ALL)

Ram Kumar Pandey @ Bachu Dayal v. State of U. P.

2013-03-14

VISHNU CHANDRA GUPTA

body2013
JUDGMENT Vishnu Chandra Gupta,J. Rejoinder affidavit filed today by learned counsel for the petitioners is taken on record. 2. Heard Sri Madan Gopal Tripathi, learned counsel for the petitioners, Sri Vishwajeet Singh, learned counsel for the opposite party No.2 and Sri Rajendra Kumar Dewedi, learned AGA. 3. By means of this petition under Section 482 Cr.P.C. the petitioners have prayed for setting aside the summoning order dated 07.04.2012 passed by Chief Judicial Magistrate, Balrampur after rejecting the final report and accepting the protest petition, the order dated 31.10.2012 rejecting the objection filed by accused against order dated 07.04.2012 and also the order of revisional court order dated 23.01.2013 in relation to Criminal Case No. 649M/2011 4. The only question for consideration before this Court is that whether Magistrate could proceed to take cognizance straightway under Section 190(1)(b) of the Code of Criminal Procedure after rejecting final report submitted in a police instituted case on the basis of some statement recorded during investigation and some statement given in the form of affidavits along with protest petition. 5. The question is not res integra. The Apex Court made the position crystal clear in H.S.Bains Vs. The State (Union Territory of Chandigarh (AIR 1980 Supreme Court 1883) so far as the controversy in regard to taking cognizance after submission of the final report is concerned. In this case the Apex Court suggested three options to the Magistrate in case the final report is submitted; (i) He may decide that there is no sufficient ground for proceeding further and dropped action, (ii) he may take cognizance of the offence under Section 190 (1)(b) Cr.P.C. on the basis of police report and issue process which he may do without being bound by any manner by the conclusion arrived at by the police in their report, (iii) he may take cognizance of the offence under Section 190(1)(a) Cr.P.C. on the basis of original complaint and proceed to examine upon oath the complainant and his witness under Section 200 Cr.P.C. If he adopt the third alternative he may hold or direct any inquiry under Section 202 Cr.P.C. if he thinks fit, and thereafter he may dismiss the complaint or issue process as the case may be. This judgment followed in subsequent judgments of the Apex Court as well as of this Court. In Minu Kumari & Ors Vs. This judgment followed in subsequent judgments of the Apex Court as well as of this Court. In Minu Kumari & Ors Vs. State of Bihar reported in 2006 (4) SCC 359 , the Apex Court also pointed out that there is one more option to the Magistrate that he after disagreeing with the report may direct for further investigation. 6. It is well settled now that the Magistrate is competent to take cognizance even after protest petition straightway under Section 190 (1)(b) Cr.P.C. if he is satisfied that material available in the case diary is sufficient to take cognizance of the offence but while taking cognizance under Section 109 (1)(b) he cannot rely upon the other material placed along with the complaint/ protest petition. If he intended to do so the Magistrate has option to proceed under Chapter XV of the Criminal Procedure Code and treat the protest petition as a complaint, conduct inquiry and to decide whether any material is available to take cognizance against the accused persons and if he is prima facie satisfied with the material for taking cognizance he may proceed under Section 190(1)(a) Cr.P.C. and not under Section 190(1)(b) Cr.P.C. 7. In the light of the aforesaid legal proposition of law the fact of the present case to be scanned. 8. From perusal of the order impugned it is crystal clear that only the complainant Smt. Dhanrajee supported the version of the first information report but no other witness or witnesses of the will were examined. From perusal of the prosecution version it appears that a will was executed by her husband. According to her it was a forged will she filed a civil suit for cancelling the same. Simultaneously she proceeded in the criminal side. The police after investigation submitted final report in the matter. Notices were issued to the complainant who filed protest petition along with affidavits of witness of will who were admittedly not examined by the investigating officer. After relying upon the affidavits given by witnesses who are said to be witness of will, the court proceeded to take cognizance under Section 190(1)(b) Cr.P.C. 9. It has been pointed out by learned counsel for the opposite party No.2 that in similar facts this Court in Vikrant & Ors. Vs. State of U.P. & Anr. (2011 (2)JIC 392 (All). Took cognizance under Section 190(1)(b) Cr.P.C. 10. It has been pointed out by learned counsel for the opposite party No.2 that in similar facts this Court in Vikrant & Ors. Vs. State of U.P. & Anr. (2011 (2)JIC 392 (All). Took cognizance under Section 190(1)(b) Cr.P.C. 10. I have gone through the judgement cited in Paragraph 9 of this judgment deals otherwise. Para 9 of this judgment is reproduced hereinbelow; "9. In my opinion, the learned Additional Chief Judicial Magistrate has not taken cognizance on the basis of the affidavits. He has merely referred to the affidavits in his order while referring to the relevant facts of the case and has very categorically arrived at the conclusion that the respondent no.2 and her witnesses have supported the F.I.R. version in their statements made under section 161 of the Code. In my opinion, the learned Magistrate considered the entire materials collected during the investigation including the dying declaration and arrived at the conclusion that a prima facie case was made out against the accused. In this view of the matter, the High Court, in exercise of the inherent jurisdiction under section 482 of the Code, can not substitute its own finding of fact. In my opinion, the learned Magistrate does not appear to have taken into account any extraneous material while passing the impugned order." 11. In view of above discussion, this petition deserve to be allowed. 12. Accordingly, the petition is allowed the impugned order dated 07.04.2012 passed by Chief Judicial Magistrate, Balrampur in Case Crime No. 637 of 2011, under Sections 419, 420, 467, 471, 506 IPC, P.S.-Tulsipur, Balrampur, order dated 07.04.2012 and order dated 31.10.2012 passed by Chief Judicial Magistrate, Balrampur and order dated 23.01.2013 passed by Sessions Judge, Balrampur are set aside. 13. The matter is sent back to the Magistrate concerned to consider and pass appropriate order in view of the observation made in the body of the judgment on the basis of protest petition filed by complainant in accordance with law upon the final report submitted by the police.