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2017 DIGILAW 741 (ALL)

DINESH KUMAR v. STATE OF U. P.

2017-03-09

AMAR SINGH CHAUHAN

body2017
JUDGMENT Hon’ble Amar Singh Chauhan, J.—Heard Sri Anil Kumar Sharma, learned counsel for the applicants, Sri Ram Ashish Pandey, learned counsel for opposite party No. 2 and learned AGA for the State. 2. I have perused the material on record. 3. The applicant Dinesh Kumar and four others through the present application moved under Section 482 Cr.P.C. have invoked the inherent jurisdiction of this Court with a prayer to quash the summoning order dated 9.7.2007 as well as proceeding of the Complaint Case No. 84 of 2006 (Vishram Singh v. Dinesh Kumar and others) under Sections 395, 397, 307 and 308 IPC, Police Station Bakewar, District Etawah and further prayed to stay the aforesaid proceeding against the applicants. 4. Learned counsel for the applicants submitted that an application under Section 156(3) Cr.P.C. was moved by opposite party No. 2 Vishram Singh with the allegation that on 3.3.2005 at 21.00 p.m. when the informant was returning from Lucknow by his motor cycle when he reached near his place the accused Dinesh Kumar, Rakesh, Sarvesh, Mahendra and Naresh who were standing there, assaulted and caused injury by lathi on his head and snatched his rifle. The said application was allowed and concerned police was directed to investigate the matter. After concluding the investigation, the Investigating Officer submitted the final report against which the opposite party No. 2 Vishram Singh filed the protest petition which was rejected and final report was accepted. It is further submitted that when the final report was accepted then except to challenge the order in revision fresh complaint cannot be filed because these are the unending proceedings. 5. Per contra learned counsel for the opposite party No. 2 contends that the Magistrate without taking into account the averment made in the protest petition accepted the final report. Aggrieved by the aforesaid, complaint was preferred which, by no means is illegal, as there is no bar in filing complaint. It is further submitted that neither the Magistrate nor Investigating Officer did consider the injury report in which there are five number of injuries on the body of the complainant and in the X-ray report depressed fracture in the frontal bone (left) was found. 6. In this case, the main point of consideration is that whether after rejecting the protest petition and accepting the final report fresh complaint can be entertained by the Magistrate. 6. In this case, the main point of consideration is that whether after rejecting the protest petition and accepting the final report fresh complaint can be entertained by the Magistrate. Only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power under Section 482 Cr.P.C. may be exercised to prevent the abuse of process or miscarriage of justice. 7. A Magistrate on receipt of a complaint, order an investigation under Section 156(3), and receives a police report under Section 173(1, may thereafter do one of the following: (1) He may decide to drop the proceeding if in his opinion no sufficient ground exists for proceeding. (2) He may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process. (3) He may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceeding but examine upon oath the complainant and his witnesses under Section 200 Cr.P.C. 8. It would be useful to make it clear at this stage that the Magistrate if decides to take cognizance of the case under 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency from the record of the investigation, in such an eventuality, he is not bound to follow procedure laid down in Section 200 and 202 Cr.P.C. and thus proviso to Section 202(2) will have no application. However, for the purpose of forming such an independent opinion the Magistrate can act only upon statement of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use any material other than investigation records unless he decides to take cognizance under Section 190(1)(b) of the Code, then call upon the complainant to examine himself and the witnesses per se, if any under Section 200 Cr.P.C. Therefore, it is open to the Magistrate to treat the protest petition as complaint and proceed further in the manner as provided and or after receiving the police report, he take cognizance under Section 190(1)(b) of the Code. Whether a Magistrate after receiving the protest petition would proceed under Section 190(1)(a) or 190(1)(b) depends upon the view formed by the Magistrate on the basis of the material available before him. 9. In the instant case, protest petition was filed against final report which was rejected and final report was accepted by an order dated 14.8.2006 without considering the statement of the injured, independent witness and injury report 10. In the case of Mathura Prasad and others v. State of U.P. and another, 2007 (1) JIC 492 (All), in which Division Bench of this Court observed that the reason for taking this view is where the Magistrate decides to take cognizance of a case under Section 190(1)(b) of the Code ignoring the conclusion arrived at by the investigating agency and by applying his own mind on the facts available on investigation record, he is not bound to follow the procedure laid down in Section 200 and 202 of the Code and consequently proviso to Section 202(2) also would have not application. In such case a Magistrate can form his opinion only on the statement of the witnesses recorded by the police in the case diary and other material collected during his investigation and it is not permissible for him at this stage to look into any material other than investigation record unless it decides to take cognizance under Section 190(a) of the Code. 11. In case of Pramatha Nath Talukdar and another v. Saroj Ranjan Sarkar, AIR 1962 SC 876 , it has been held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short ‘the Code’) is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as (a) where the previous order was passed on incomplete record (b) or on a misunderstanding of the nature of the complaint (c) or the order which was passed was manifestly absurd, unjust or foolish or (d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings. This Court made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. Fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. 12. Again Hon’ble Supreme Court in Mahesh Chand v. B. Janardhan Reddy and another, (2003) 1 SCC 734 , held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. The ratio decidendi laid down in Pramatha Nath Talukdar case (supra) was again reiterated by Hon’ble Supreme Court in Poonam Chand Jain’s case [2010 Law Suit (SC) 37]. 13. In the case in hand, the exceptional circumstances is that the Magistrate did not consider the injury report, statement of the witnesses and statement of injured witnesses. In the injury report of the complainant, there was depressed fracture in left frontal bone which suggests that the alleged acts would come within the purview of the offence describe under Section 308 IPC i.e. attempt to culpable homicide. 14. In view of the above discussion, I find no reason to interfere in the proceedings and, therefore, refuse to quash the proceedings in the aforesaid case as the summoning order dated 9.7.2007 is justified and no illegality or demerit is found in the impugned order. 15. Hence, the application moved by the accused Dinesh Kumar under Section 482 Cr.P.C., is rejected as being devoid of merit. 16. There is no order for cost.