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2016 DIGILAW 571 (ALL)

GAURAV v. STATE OF U. P.

2016-02-18

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—Supplementary-affidavit filed by the counsel for the applicant is taken on record. 2. This Criminal Misc. Application under Section 482 Cr.P.C. has been preferred against the order dated 12.1.2014 passed by the Judicial Magistrate, Iglas Aligarh in Case No. 16 of 2015 arising out of case Crime No. 651 of 2014 under Sections 323, 504, 506, 452 and 392 IPC P.S. Iglas District Aligarh and the order dated 6.1.2016 passed by the Sessions Judge, Aligarh in Criminal Revision No. 13 of 2016 preferred by the present applicants against the aforesaid order dated 12.1.2014. 3. Heard learned counsel for the applicants and learned AGA. 4. Submission of the counsel for the applicants is that the concerned Judicial Magistrate has committed grave illegality while taking cognizance on the charge-sheet dated 12.9.2014 by taking cognizance of some additional offences under Section 452 and 392 IPC also under which the charge-sheet was not submitted. It has been pointed out that the charge-sheet was submitted only under Section 323,504, 506 IPC. It has further been submitted that illegality committed by the concerned Judicial Magistrate perpetuates further by summoning the applicants No. 1, 2 and 3 alongwith applicant No. 4 whose name was alone mentioned in the charge-sheet dated 12.9.2014. Further submission is that the lower revisional Court has also not considered the legal position in right perspective and has dismissed the revision of the applicants against the settled position of law that the concerned Judicial Magistrate cannot add offences while taking cognizance over the charge-sheet submitted by the Investigating Officer and also cannot exercise power under Section 319 Cr.p.C. at the time of taking cognisance and issuance of summons. In support of his contention the counsel for the applicants has placed reliance upon Apex Court judgement in State of Gujrat v. Girish Radhakishan Varde, 2014(84) ACC 384. 5. Learned AGA opposed the contention of the counsel for the applicants and has submitted that the case law cited by the applicants is not applicable in the facts of the case and the Courts below have rightly passed orders as the materials available on case diary clearly disclosed the offences under Section 323, 504,506, 452 and 392 IPC against all the applicants. 6. Perused the record in the light of the submissions made by the counsel for the parties. 7. 6. Perused the record in the light of the submissions made by the counsel for the parties. 7. The record reveals that first information report dated 2.9.2014 was lodged by the opp.party against all the applicants for the incident dated 1.9.2014 occurring at 4.00 p.m. which was registered as above noted case crime number. In the said incident dated 1.9.2014 the daughter of opp.party No. 2, namely, Smt. Rupesh and son,namely, Neeraj Kumar had received injuries. The investigation was carried out by the investigating officer wherein the material collected by the investigating officer revealed that the accused applicants abused the informant side, entered into the house of the informant with common intention and assaulted upon the family members of the opp.party No. 2/informant and also snatched and took away the earrings of Smt. Rupesh daughter of opp.party No. 2. However, the investigating officer submitted charge-sheet under Section 323, 504, 506 IPC only and that too only against the applicant No. 4 as it was opined by the investigating officer that the implication of applicants No. 1, 2 and 3 was found incorrect and offences under Section 452 and 392 IPC were also not found to have been committed. With such opinion, the investigating officer submitted charge-sheet dated 12.9.2014 before the concerned Judicial Magistrate. At the stage of cognizance the opp.party No. 2/informant submitted application dated 23.12.2014 praying therein that the Investigating Officer has submitted charge-sheet only against the applicant No. 4 wrongly for lesser offences in order to favour the accused persons. 8. The concerned Judicial Magistrate at the stage of taking cognizance, perused the entire case diary and found that the materials available on case diary constituted offences under Sections 323, 504, 506, 452 and 392 IPC against all the named accused persons i.e. applicants No. 1, 2,3 and 4. With such conclusion, the concerned Judicial Magistrate took cognizance under all the said offences and issued summons against all the applicants in respect thereof. The aforesaid factual matrix available on record goes to show that the concerned Judicial Magistrate did not agree with the conclusion drawn by the Investigating Officer after perusing the entire case diary and took cognizance of the offences under Sections 323, 504, 506, 452 and 392 IPC and summoned all the accused applicants. The aforesaid factual matrix available on record goes to show that the concerned Judicial Magistrate did not agree with the conclusion drawn by the Investigating Officer after perusing the entire case diary and took cognizance of the offences under Sections 323, 504, 506, 452 and 392 IPC and summoned all the accused applicants. The position of law in respect of taking cognizance under Section 190(1)(b) of Cr.P.C. has been long set at rest to the effect that the cognizance is taken by Magistrate for the offences which appear to have been committed and after taking cognizance under Section 190(1)(b) of Cr.P.C, the summons are issued against those persons whose involvement in the commission of offence appears from the material available on case diary. This process of taking cognizance and issuance of summons against the persons appearing to have committed the offence is within the authority of the concerned Judicial Magistrate and is quite independent from the conclusion drawn by the Investigating Officer. 9. In the present case, it is very much clear from bare perusal of the order dated 12.1.2014 that the concerned Judicial Magistrate has considered the materials available on the case diary only and has not considered any extraneous material and as such the concerned Judicial Magistrate was well within his authority in coming to a conclusion different from the conclusion drawn by the Investigating Officer. The case law cited by the counsel for the applicants relates to entirely different set of facts in as much as the Apex Court was dealing with the case in which the concerned Magistrate while entertaining the charge-sheet submitted by the police allowed the application of informant and permitted additions of few sections into the charge-sheet itself. The said order of concerned Magistrate permitting additions of three sections of Indian Penal Code into the charge-sheet after the same was submitted before the concerned Court was found by the Apex Court against the procedure prescribed in the Code of Criminal Procedure. The Apex Court in the said judgement of State of Gujrat v. Girish RadhaKishan Varde (Supra) has opined that the Magistrate cannot exclude and include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police. 10. The Apex Court in the said judgement of State of Gujrat v. Girish RadhaKishan Varde (Supra) has opined that the Magistrate cannot exclude and include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police. 10. In the present case, the concerned Judicial Magistrate has not passed order to add/include any section into the charge-sheet but has taken cognizance for those offences, whose ingredients were found to be available in the case diary in no uncertain terms and thereafter the concerned Judicial Magistrate issued summons against those persons who were found to have committed these offence according to the material available on case diary. In fact, the charge-sheet dated 12.9.2014 remained the same but the cognizance and summoning thereupon was based upon a conclusion different from the opinion drawn by the Investigating Officer while submitting the charge-sheet. The course adopted by the concerned Judicial Magistrate is recognized by law and is well founded. The case law cited by the counsel for the applicants is not applicable upon the given set of facts of the present case. 11. Even in the cases where the charge-sheet is not submitted against any accused and the final report is submitted in favour of all the accused, then also the Magistrate can at the time of taking cognizance entirely differ and disagree with the conclusion of the Investigating Officer. He can reject the final report as such and may summon all the accused persons named in the F.I.R if there is sufficient material available in the case diary against them to constitute the alleged offences whatever they are. Even in those cases in which a final report is submitted in favour of some of the accused while submitting the charge-sheet against other accused person, there also the Magistrate is very much within its jurisdiction to reject the final report with regard to those accused. Therefore, it is not possible to accept the contentions of the applicant’s counsel that if the charge-sheet was submitted only against one accused the other accused could not have been summoned by the Magistrate or that the cognizance could not have been and should not have been taken against them. Therefore, it is not possible to accept the contentions of the applicant’s counsel that if the charge-sheet was submitted only against one accused the other accused could not have been summoned by the Magistrate or that the cognizance could not have been and should not have been taken against them. Similarly it is also not possible to accept the contentions that if the Investigating Officer has submitted the charge-sheet under certain sections the Magistrate is bound or is under compulsion to agree with the inference drawn by the I.O. and can himself cannot apply his mind and see for himself as to what offences appear to have been committed by the accused persons on the basis of the allegations and the material available on record. The judicial rationale deducible from a catena of pronouncements of Hon’ble Apex Court would make this position clear. Reference may be suitably given to the cases of Abhinandan Jha and others v. Dinesh Mishra, 1968 AIR 117 (1962 SCR(3) 668), H.S. Bens, Director Small Saving-Cum-Deputy Secretary Finance Punjab,Chandigarh v. State (Union Territory of Chandigarh), AIR 1980 SC 1883 and Pakhandu Ram and others v. State of U.P. and others (Allahabad High Court) 2001 (43) ACC 1096. 12. Like wise the lower revisional Court also deliberated over the controversy thoroughly and rightly came to the conclusion that the order of cognizance and summoning passed by the concerned Judicial Magistrate does not suffer with any infirmity or illegality. 13. In view of the aforesaid analysis, the Criminal Misc. Application preferred by the applicants has no merit and is dismissed accordingly.