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2017 DIGILAW 216 (ALL)

Rajesh @ Raju v. State of U. P.

2017-01-16

KARUNA NAND BAJPAYEE

body2017
JUDGMENT : Karuna Nand Bajpayee, J. This application u/s 482 Cr.P.C. has been filed seeking the quashing of entire proceedings of Case No.16 of 2012 (Shankar Lal Tiwari v. Rajesh alias Raju and others), arising out of Case Crime No.1120 of 2011, u/s 498-A and 304-B I.P.C. r/w 3/4 of the Dowry Prohibition Act, Police Station-Bargarh, District-Chitrakoot, pending in the court of Judicial Magistrate, Chitrakoot including the cognizance/summoning order dated 22.08.2016 passed by the Chief Judicial Magistrate, Chitrakoot. 2. Heard Shri C.K. Parekh, learned counsel for the applicants, Shri Harish Chandra Mishra, learned counsel for opposite party no.2 and learned A.G.A. 3. The hub of the submissions that have been placed by the counsel challenging the impugned order whereby the learned Magistrate has rejected the final report and proceeded to summon the accused to face the trial, is that while considering the final report the Magistrate also looked into the affidavits and material that was placed before him on behalf of the first informant and once the Magistrate looks into it and goes through them then the cognizance should be deemed to have been based on the material extraneous to the case diary, and therefore, the cognizance could not have been taken u/s 190(1)(b) of Cr.P.C., instead it should have been taken cognizance u/s 190(1)(a) of Cr.P.C. and the court should have proceeded in the matter following the procedure of complaint case and also should have recorded the statements u/s 200 and 202 of Cr.P.C. before summoning the applicants to face trial. 4. Perused the record in the light of submissions made at the Bar. 5. The perusal of impugned order reflects judicial application of mind. All the facts and circumstances of the case have been gone into in great detail and the same appears to have been analysed in right perspective. The law on the point of accepting and rejecting the final report is also clear. After submission of the final report there are many options open before the Magistrate, he can reject the final report and differ with the inference drawn by the Investigating Officer. The law on the point of accepting and rejecting the final report is also clear. After submission of the final report there are many options open before the Magistrate, he can reject the final report and differ with the inference drawn by the Investigating Officer. But at the same time if in his opinion there is sufficient material available in the case diary on the basis of which the cognizance may be taken he can well take cognizance on the material contained in the case diary and proceed with the matter as a State case taking cognizance u/s 190(1)(b) Cr.P.C. It is also possible that he may accept the final report if he agrees with the inference drawn by the Investigation Officer. The third option open before the Magistrate is that he may treat the protest petition as a complaint and may proceed in the matter as a complaint case. Another option is that if he feels that the matter deserves some further investigation he can proceed to make the same order and ask the Investigating Officer to undertake further investigation into the case and submit his report. 6. The bare perusal of impugned order would reveal that the F.I.R. and the entire case diary were thoroughly gone into by the Magistrate and it was discussed at great length. Ordinarily we do not come across the orders accepting the final report where the case diary is so meticulously considered and appreciated, and therefore, the arguments raised by the counsel in this behalf that the cognizance is not based on material contained in the case diary is factually incorrect and is not tenable. So far as looking into the other material furnished by the first informant is concerned, the Magistrate was bound to look into same. If a protest petition is filed, it is naturally filed so that the Magistrate may peruse the same. It is often accompanied by other material also and the court can also not close its eyes upon them as well. The question is not whether the material is looked into or not or whether it has been referred to or not in the order. The real thing is that the impugned order must reflect, and it is not very difficult to deduce so, whether the order is actually based on the material contained in the case diary or has been based primarily on extraneous material. The real thing is that the impugned order must reflect, and it is not very difficult to deduce so, whether the order is actually based on the material contained in the case diary or has been based primarily on extraneous material. If the court comes to the conclusion that the cognizance was based primarily on the material that was foreign to the case diary then of course the court would direct to follow the procedure of the complaint case. But such a proposition cannot be stretched to an extent that the moment the Magistrate would cast its glance on the material furnished by the first informant or would make reference to it in its order it should automatically be presumed that the cognizance was based on the same. It is no use of making detailed reference to the discussion that has been made by the court below because it has already been observed that the entire material available in the case diary has been thoroughly discussed by the Magistrate and this Court is completely satisfied that the Magistrate has actually passed the order on the basis of material contained in the case diary and adopted the right course of procedure by summoning the accused to face the trial as a State case. It is obvious from the perusal of the impugned order that what has been done by the Magistrate, it is perfectly within the permissible legal ambit of his powers and there is nothing illegal about the same on the basis of which the impugned order may be castigated. There is no abuse of court's process perceptible in the impugned order or proceedings, and therefore, the quashing of impugned order and the proceedings is refused. The application lacks merit and stands dismissed. 7. In the last, counsel for the applicants submits that as it is being desired by the accused-applicants to obtain bail after surrendering in the court below, a protective direction may be issued to the lower court to decide the proposed bail application on the same day. 8. In view of the aforesaid, it is directed that in case after surrendering in the court below an application for bail is moved on behalf of the accused-applicants within two months from today, the same shall be considered and decided expeditiously in accordance with law. 9. 8. In view of the aforesaid, it is directed that in case after surrendering in the court below an application for bail is moved on behalf of the accused-applicants within two months from today, the same shall be considered and decided expeditiously in accordance with law. 9. In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to. 10. It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.