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2015 DIGILAW 1198 (MP)

Sobaran Singh v. State of M. P.

2015-11-24

JARAT KUMAR JAIN

body2015
ORDER 1. This petition under section 482 of the Code of Criminal Procedure [for short “the Code”] has been filed against order dated 10.3.2014 passed by Vth Additional Sessions Judge, Indore in Criminal Revision No.233/2014 whereby affirmed the order passed by Chief Judicial Magistrate, Indore in Crime No.818/2012 on 19.2.2014. 2. Brief facts of this case are that the respondent No.3 has lodged a report at Police Station Sanyogitaganj, Indore, then a Crime No.818/2012 for the offence 818/2012 under sections 341, 294 and 506 of IPC was registered against the petitioner. After investigation on 6.11.2012 police has filed a closure report before CJM, Indore. Learned CJM has issued a notice to the respondent No.3 and after recording the statement of respondents No.2, 3 and Investigating Officer, ignoring the conclusion arrived at by the I.O., has taken the cognizance for the aforesaid offence against the petitioner on 19.2.2014. Then petitioner preferred a revision before Vth ASJ. Learned ASJ has dismissed the revision and affirmed the order passed by the CJM, Indore. Being aggrieved with this orer petitioner has filed this petition under section 482 of the Code on various grounds. 3. Learned counsel for the petitioner submits that when the closure report was filed before the CJM, then he may accept the report or may direct for further investigation instead of he proceeded to record the statements of the witnesses. Thus, committed an error of law. Apart from this there is no reliable evidence against the petitioner for taking cognizance. ASI, Mahadeo Singh Bhadauriya who is, an independent witness stated that after investigation he found that the respondent No.3 has lodged a false report due to enmity. It is also submitted that alleged incident has taken place in a public place whereas none of the independent witness has produced to support the prosecution case. There is material contradictions between the statements of respondents No.2 and 3 so also the place of incident is changed in the spot map. In such circumstances, to continue this prosecution is a mere abuse of process of Court, therefore, it be quashed. 4. There is material contradictions between the statements of respondents No.2 and 3 so also the place of incident is changed in the spot map. In such circumstances, to continue this prosecution is a mere abuse of process of Court, therefore, it be quashed. 4. On the other hand learned Government Advocate as well as the learned counsel for the respondents No.2 and 3 supports the impugned order and submitted that while recording the statements of respondents No.2 and 3 CJM has not committed any error of law and it was not obligatory for the CJM to accept the closure report. The infirmities pointed out by the learned counsel for the petitioner or the matter of evidence, this Court can not appreciate the evidence while exercising the power under section 482 of the Code. Thus, there is no merit in the petition and petition deserves to be dismissed. 5. After hearing the learned counsel for the parties I have perused the record. 6. The objection of the learned counsel for the petitioner is that when the report under section 169 of the Code was forwarded to Magistrate by the Police, the Magistrate may accept it or may direct for further investigation, but in the present case he has followed the procedure under sections 200 and 202 of the Code for taking the cognizance i.e. illegality in this regard. It is useful to refer the judgment of the Hon'ble apex Court in the case of Minu Kumari v. State of Bihar [ (2006)4 SCC 359 ], held as under : - “10. In Abhinandan Jha v. Dinesh Mishra this Court while considering the provisions of sections 156(3),169,178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in section 190(1)(c). 11. When a report forwarded by the police to the Magistrate under section 173(2)(i) is placed before him several situations arise; the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and take a view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under section 156(3). The position is, therefore, now well settled that upon receipt of a police report under section 173(2) a Magistrate is entitled to take cognizance of an offence under section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can take into account the statements of the witnesses examined by the police during investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in sections 200 and 202 of the Code for taking cognizance of a case under section 190(1)(a) though it is open to him to act under section 200 or section 202 also. (See India Carat (P) Ltd. v. State of Karnataka)” In the light of this pronouncement I am of the view that the Magistrate has not committed any illegality in recording the statement of the respondents No.2 and 3. 7. So far as the other objection is concerned, it is in regard to appreciation of evidence and cannot be considered at this stage, while exercising the jurisdiction under section 482 of the Code. 8. In such circumstance, I am of the view that the Courts below have not committed any illegality, therefore, no interference is called for by this Court. Thus, there is no merit in the petition, the petition is hereby dismissed.