Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3273 (ALL)

Susheel Rai v. State of U. P.

2016-09-23

VIVEK KUMAR BIRLA

body2016
JUDGMENT Vivek Kumar Birla,J. Heard Sri Nazrul Islam Jafri, learned counsel for the applicants as well as learned AGA for the State and Sri S. Rashid, learned counsel for the opposite party no. 2 and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 30.7.2016 passed by the Additional Chief Judicial Magistrate, Court No. 12, Azamgarh whereby learned Court below has taken cognizance against the applicants. It is further prayed for quashing the entire proceedings of Criminal Case No. 252 of 2016 (State vs. Susheel), arising out of Case Crime No. 329 of 2014 under Sections 406, 419, 506, 467, 468, 471 IPC, P.S. Kotwali Jiyanpur, District Azamgarh. 3. A first information report dated 23.12.2014 was lodged by the opposite party no. 2-Amzad Khan against the applicants herein, which was registered as Case Crime No. 329 of 2014, under Sections 406, 419, 420, 506 IPC. After investigation, the Investigating Officer filed charge-sheet under Section 406 IPC only against the applicant no. 1-Susheel Rai herein and the other co-accused named in the first information report were exonerated. 4. Against the said charge-sheet, an objection was raised by the opposite party no. 2 to the effect that offences under Sections 406, 419, 420, 467, 468, 471, 506 IPC have been made out against all the accused persons, who are applicants herein. The prosecution also filed an application to the same effect stating therein that in parcha nos. 1 to 23 the Investigating Officer has categorically recorded that against accused persons, offences under sections as noted above have been made out and as such, cognizance should be taken against all the persons. After considering material so collected during investigation on record, by the impugned order dated 30.7.2016 the Additional Chief Judicial Magistrate, Court No. 12, Azamgarh has taken cognizance against all the persons under Sections 406, 419, 420, 506, 467, 468 IPC. 5. It may be noticed that charge-sheet was submitted against the applicant no. 1-Susheel Rai herein only and other three persons, namely, applicant no. 2-Sudhakar Rai, applicant no.3-Santosh Rai and applicant no. 4-Harish Chandra Rai have been summoned by the court below on the basis of material collected during investigation. 6. Submission of the learned counsel for the applicants is that the charge-sheet against the applicant no. 1-Susheel Rai herein only and other three persons, namely, applicant no. 2-Sudhakar Rai, applicant no.3-Santosh Rai and applicant no. 4-Harish Chandra Rai have been summoned by the court below on the basis of material collected during investigation. 6. Submission of the learned counsel for the applicants is that the charge-sheet against the applicant no. 1 was filed under Section 406 IPC only and addition of Sections 419, 420, 506, 467, 468, 471 IPC is not permissible in view of the law laid down by the Hon'ble Apex Court in the case of State of Gujarat vs. Girish Radha Krishnan Varde, 2014 (3) SCC 659 wherein Hon'ble Apex Court has held under: "The Magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be." 7. It was next submitted by the learned counsel for the applicants that other co-accused persons have wrongly been summoned as they are not at all connected with the alleged offence. It was pointed out that the applicants no. 2 and 3 are government servant and working as Assistant Teacher and applicant no. 4 has already retired as a teacher in the year 2009 and he is aged about 70 years. It was also submitted that as a matter of fact in a business transactions where the applicant no. 1 was duped by one Pramod Rai and others, he had lodged first information report against Pramod Rai and two other persons on 15.8.2014, which was registered as Case Crime No. 468 of 2014 under Sections 419, 420, 468, 471, 406, 506 IPC. During investigation, statement of the opposite party no. 2-Amjad Khan was recorded by the police wherein it has come that the applicant no. 1-Susheel Rai has borrowed a sum of Rs. 12,50,000/- from him and about Rs. 7,24,000/- has already been returned to him. Submission is that subsequently the present criminal prosecution was lodged, which is absolutely baseless and order impugned herein is wholly illegal and is liable to be set aside in the light of Varde's case (supra). 8. Per contra, learned AGA and learned counsel for the opposite party no. 7,24,000/- has already been returned to him. Submission is that subsequently the present criminal prosecution was lodged, which is absolutely baseless and order impugned herein is wholly illegal and is liable to be set aside in the light of Varde's case (supra). 8. Per contra, learned AGA and learned counsel for the opposite party no. 2 has supported the impugned order and submitted that in view of the law laid down by the Constitution Bench of Hon'ble Apex Court in the case of Dharam Pal and others vs. State of Haryana and another, 2014 (3) SCC 306 , the Magistrate has power to disagree with the police report and if he is convinced that a case has been made out, he has power to issue summons against persons who were exonerated by the police during investigation and can include their names in connection with the case made out in the police report. It was next submitted that in this light Varde's case (supra) is of no help to the applicants including applicant no. 1-Susheel Rai against whom the charge-sheet was submitted under Section 406 IPC and therefore, submission is that after the judgement of Dharam Pal's case (supra), if the Magistrate was satisfied that sufficient material is available on record for addition of sections against the chargesheeted person, his powers are not restricted. 9. I have considered the rival submissions and perused the record. 10. A Constitution Bench of the Hon'ble Apex Court in the case of Dharam Pal's case (supra) has discussed the powers of the Magistrate under Section 190 Cr.P.C. upon filing of a police report under Section 173 (2) Cr.P.C. Before proceeding further, it would be appropriate to quote paragraphs no. 7, 7.2, 33, 34, 35 and 36 of the Dharam Pal's case (supra): - "7. The questions which require the consideration of the Constitution Bench are as follows: 7.2 If the Magistrate disagree with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? 33. 33. As far as the first question is concerned, we are unable to accept the submissions made by Mr Chahar and Mr Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate has no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr Dave, there could be no intermediary stage between taking of cognizance under Section 190 (1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Sessions Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event the Sessions Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same. 34. The view expressed in Kishun Singh vs. State of Bihar, (1993) 2 SCC 16 , in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173 (2) of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(2) of the Code, he was helpless in taking recourse to such a course of action while the Sessions Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. 35. 35. In our view, the Magistrate has a role to play while committing the case to the Court of Sessions upon taking cognizance on the police report submitted before him under Section 173 (2) Cr.P.C. In the event the Magistrate disagree with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter. 36. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court." 11. Thus, as held in Dharam Pal's case, " In the event the Magistrate disagree with police report", the Magistrate has power to summon accused persons on the basis of case diary and the material collected during investigation and placed along with the police report while dealing with a negative police report and can proceed against the accused persons dehors the police report. 12. As per settled law and more recently reiterated by Hon'ble Apex Court in Prasad Srikant Purohit vs. State of Maharastra, (2015) 7 SCC 440 that taking of 'cognizance' under Section 190 Cr.P.C. does not involve any formal action or indeed action of any kind and that it only indicates the point which Magistrate or a Judge taken judicial notice 'of offence' 'not of offender' and thus, cognizance is mainly of the offence and not of the offender. 13. 13. In the light of the aforesaid, it is to be seen as to whether Varde's case (supra) would apply to the present case or not. 14. Admittedly, in the present case although applicant no. 1-Susheel Rai was chargesheeted under Section 406 IPC, however in respect to other three named accused, namely, applicant no. 2-Sudhakar Rai, applicant no.3-Santosh Rai and applicant no. 4-Harish Chandra Rai, negative report was submitted by the police. The prosecution as well as informant has raised objection to the police report. Thus, as per settled law, under Section 190 Cr.P.C., the Magistrate has power to look into/go into the police report and the material placed along with police report filed under Section 173 (2) Cr.P.C. for the purpose of taking cognizance of offence. From perusal of the impugned order, it is very much clear that the learned Magistrate has gone through case diary and the material filed along with the police report thoroughly and has recorded his satisfaction and found that there is sufficient basis for taking cognizance under Sections 406, 419, 420, 467, 468, 471 IPC against all accused persons. 15. In Varde's case (supra), Hon'ble Apex Court was considering a case where a police report i.e. positive charge-sheet was submitted by the police and there was no negative report, therefore, it was held that under such circumstances, correct stage for addition or substraction of the sections will have to be determined at the time of framing of charge, whereas in the present case in hand there is a negative report insofar as applicant no. 2-Sudhakar Rai, applicant no.3-Santosh Rai and applicant no. 4-Harish Chandra Rai are concerned and therefore, the Magistrate has power to go into police report and the material filed along with the police report and has, therefore, rightly exercised his power under Section 190 (1)(b) Cr.P.C. For this reason Varde's case (supra), as relied on by learned counsel for the applicant, is clearly distinguishable and would not be applicable in the present case. 16. In view of the above discussion, I do not find any legal infirmity or impropriety or jurisdictional error in the impugned order dated 30.7.2016 passed by the Additional Chief Judicial Magistrate, Court No. 12, Azamgarh and there is no good ground to quash the proceedings of the aforesaid case. 17. The present application lacks merit and is accordingly dismissed.