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2014 DIGILAW 110 (ALL)

MUNNI v. STATE OF U. P.

2014-01-10

MANOJ MISRA

body2014
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the applicants, Sri Rajesh Kumar Verma, holding brief of Sri M.P. Singh Yadav, for the opposite party No. 2 and the learned A.G.A. for the State. By the present application, under Section 482 Cr.P.C., the applicants have sought for quashing of the order dated 16.7.2012 passed by the Court of Additional Chief Judicial Magistrate, III, Rampur by which, after rejecting the final report submitted by the police, cognizance has been taken and the applicants have been summoned under Sections 379, 504, 506 I.P.C. The applicants have also sought for quashing of the entire proceedings in pursuance of the above order pending as Case No. 556 of 2012 in the said Court, arising out of Case Crime No. 199 of 2012, under Sections 379, 504, 506 I.P.C., P.S. Shahzaad Nagar, District Rampur. 2. A perusal of the record reveals that a First Information Report was lodged by the opposite party No. 2 against the applicants and one Preetam Singh alleging that the applicants had cut away 3 year old “Poplar” trees standing over plot No. 324 belonging to the informant and that when the informant protested, he was threatened. It was further alleged that the accused had earlier also cut away trees worth lacs owned by Ram Janki Murti Virajman Mandir. After investigation, the police submitted a final report stating that the plot of the informant was coming under Chak Road, therefore, to create pressure false case was set up and commission of any offence could not be substantiated. Against the final report, a protest petition was submitted by the opposite party No. 2. In para 4 of the protest petition (Annexure 5 to the affidavit) it was alleged that after registering the FIR the police neither recorded the statement of the informant nor inspected the spot or prepared site plan. In the protest petition, various documents were mentioned which, according to the informant, were relevant but not considered by the investigating agency. In paragraphs 5 and 6 of the protest petition it was stated that those documents, which were not considered by the Investigating Agency, were being filed alongwith the protest petition. 3. By the impugned order dated 16.7.2013 the learned Magistrate rejected the final report, took cognizance and summoned the applicants. In paragraphs 5 and 6 of the protest petition it was stated that those documents, which were not considered by the Investigating Agency, were being filed alongwith the protest petition. 3. By the impugned order dated 16.7.2013 the learned Magistrate rejected the final report, took cognizance and summoned the applicants. In the impugned order it was observed that the investigation was not properly carried out and no effort was made to ascertain whether the trees were cut away or were removed for the chak road. It was observed that for ascertaining the truth it was necessary that a proper survey of the plots involved should have been carried out as also the statement of Lekhpal should have been recorded, which was not done. The learned Magistrate, thereafter, proceeded to consider few documents supplied alongwith the protest petition so as to observe that earlier there were several trees on Mandir land, which were not found now, and after few other observations, the learned Magistrate formed an opinion that there was, prima facie, evidence available to proceed against the applicants. 4. The submission of the learned counsel for the applicants is that on submission of final report, the learned Magistrate had four options: (a) to accept the final report; (b) to take cognizance on the police report by taking note of the material collected by the police during the course of investigation; (c) to take cognizance on the protest petition by treating the same as a complaint and to summon the accused only after following the complaint case procedure; and (d) to direct for further investigation if the Magistrate was of the opinion that investigation was not carried out properly. It has been submitted that the learned Magistrate erred in law by mixing both the procedures, inasmuch as he has taken note of various material/document supplied alongwith the protest petition, which was not a part of the police report. It has been submitted that the Magistrate had no jurisdiction to take into consideration the material supplied alongwith the protest petition for the purpose of taking cognizance and if he was of the view that the material in the police report was not sufficient for the purpose of taking cognizance, then he ought to have treated the protest petition as a complaint and only after following the complaint case procedure to have summoned the applicants. 5. 5. The learned counsel for the respondent No. 2 submitted that no fresh evidence was considered and that the learned Magistrate had taken cognizance on the basis of the material available in the police report. It was thus submitted that there was no legal flaw in the order by which the final report was rejected and the applicants were summoned after taking cognizance. The learned AGA also sought to support the order passed by the learned Magistrate. 6. Having considered the rival submissions, before proceeding to test the validity of the order passed by the learned Magistrate it would be useful to first examine the law on the options available to a Magistrate when a final report is submitted by the police after investigation. The law in this regard has been succinctly stated by the Apex Court in Popular Muthiah v. State, (2006) 7 SCC 296 , in paragraph 54 of the report, as follows: “The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefor; and (iv) to direct reinvestigation into the matter.” Section 190 of the Code of Criminal Procedure provides that a Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf, 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 own knowledge, that such offence has been committed. 7. From above, it is clear that if cognizance is taken on a police report, then the material in the case diary ought to be considered for the said purpose. 7. From above, it is clear that if cognizance is taken on a police report, then the material in the case diary ought to be considered for the said purpose. In Mitra Sen Yadav and another v. State of U.P. and another, 2009 (3) JIC 730 (All) (LB), this Court has taken a view that cognizance cannot be taken under Section 190(1)(b) of the Code of Criminal Procedure, on the basis of the documents supplied alongwith the protest petition. The reason is obvious, because where the Magistrate takes into consideration fresh material supplied with the protest petition, then he has to treat the protest petition as a complaint and is obliged to follow the complaint case procedure as provided under Chapter XV. However, there may be a situation where a protest petition is filed enclosing therewith certain documents and statements, which are already a part of the police report/case diary, just to demonstrate before the Magistrate concerned that the opinion formed by the investigating agency is not correct and is contrary to the material already on record. In such a situation, taking notice of those papers, alongwith the protest petition, for rejecting the final form, even without following the complaint case procedure, would not vitiate the taking of cognizance, inasmuch as, in such a case it would be deemed that cognizance has been taken on the police report. Further, it is often the case that papers/statements are there on record of the police report, as part of material collected during investigation, but there is no reference to them by the investigating agency while forming its negative opinion. In such a case, if the informant re-submits those documents/statements alongwith protest petition, then the Magistrate cannot be precluded from noticing them and relying on them for taking cognizance on the police report, inasmuch as they already form part of the police report. But where those documents /statements are not part of the negative police report (final report) and are submitted for the first time alongwith the protest petition, then to act on the same, for the purpose of taking cognizance, the Magistrate is required to treat the protest petition as a complaint and follow the complaint procedure or he may direct for further investigation. 8. 8. In the instant case, on perusal of the record including the order passed by the learned Magistrate, it does appear that the Magistrate has taken into consideration material /documents supplied by the informant alongwith the protest petition. Even in paragraph 3 of the counter-affidavit, sworn by Shiv Kumar, Sub Inspector posted at P.S. Shahzaad Nagar, Rampur, filed by the learned AGA on behalf of the State, it has been stated that alongwith protest petition the informant had filed various documents. It is not absolutely clear from the order of the learned Magistrate that from the material in the police report a case was made out for taking cognizance and proceeding against the accused. In fact, in his order the learned Magistrate expressed his dissatisfaction with the manner in which the investigation was carried out. Moreover, several flaws in the investigation were noticed in the order. In such circumstances, whether there was sufficient material on the case diary for the learned Magistrate to take cognizance and proceed against the applicants, straight away, becomes doubtful. Rather, it appears that the Magistrate has taken into consideration the material/documents supplied alongwith the protest petition for the purpose of taking cognizance and issuing process against the applicants, without following the complaint case procedure. As it is not clear from the record available as also from the order of the learned Magistrate whether the material/documents supplied alongwith the protest petition, which have been noticed and considered by the learned Magistrate for taking cognizance and proceeding against the applicants, were already a part of the police report, it becomes a fit case for remand to enable the learned Magistrate to take a fresh look into the matter and pass a fresh order in accordance with law. In view of the discussion made above, the order dated 16.7.2012 passed by the Additional Chief Judicial Magistrate, Court No. 3, Rampur is hereby quashed. The learned Magistrate will pass a fresh order in accordance with law and in the light of the observations made herein above. The application stands allowed to the extent indicated above.