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Allahabad High Court · body

2018 DIGILAW 1128 (ALL)

DURGA DAS @ DURGA PRASAD v. STATE OF U. P.

2018-05-06

SUDHIR AGARWAL

body2018
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard learned counsel for revisionists, learned A.G.A. for State-respondent, and, perused the record. 2. This criminal revision under Section 397/401 Cr.P.C. has arisen from order dated 24.7.2004 passed by Special Judge (D.A.A.), Agra rejecting final report submitted by police and accepting protest petition on the basis of affidavits filed alongwith protest petition. Thereafter, Trial Court took cognizance of the offence under Section 394 IPC against revisionists and issued non-bailable warrant fixing 28.8.2004 for appearance of accused revisionists. 3. The facts in brief, as borne out from the record, are that in the night intervening 18/19.7.2001 while informant Birma Devi, her brother Ram Naresh and grandmother Ramshri were sleeping in the Courtyard inside house, at about 2 a.m., all the four accused revisionists armed with bricks and dandas entered in the house and assaulted informant, her brother Ram Naresh and grandmother Ramshri with bricks and dandas. Thereafter, they took away four boxes, one attaichi, besides clothes, utensils and Rs. 5,000/- in cash, jewellery of gold and silver. They also snatched earrings of informant and her grandmother. 4. Incident was reported by informant at concerned police station on 19.7.2001 at 8:30 a.m., whereupon investigation was made by police. Ultimately, police submitted final report No. 57 of 2001 on 21.9.2001. Final report, mentions that stolen articles were found in a field and on investigation accused named in the F.I.R. were not found involved in the incident. After submission of final report by police on 21.1.2001 before Trial Court, complainant appeared and filed protest petition alongwith affidavits of some persons. On consideration of affidavits and injury reports filed alongwith protest petition, Trial Court took cognizance of the offence under Section 394 IPC against accused revisionists and issued non-bailable warrant against them fixing 28.8.2004 for appearance in Court. 5. Learned counsel for revisionists contended that alongwith protest petition some affidavits were filed, which have been considered by learned Special Judge (D.A.A.), Agra and thereafter final report was rejected. This exercise and procedure followed by Trial Court is illegal. Submission is that no external evidence can be taken into account by Trial Court for accepting or rejecting final report. Reliance is placed on Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096 and Harkesh and others v. State of U.P. and another, 2001 (43) ACC 720. 6. Submission is that no external evidence can be taken into account by Trial Court for accepting or rejecting final report. Reliance is placed on Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096 and Harkesh and others v. State of U.P. and another, 2001 (43) ACC 720. 6. Learned A.G.A., on the contrary, submitted that it is open to Magistrate to accept or not, final report submitted by Police, and Magistrate can examine the matter himself. If it finds expedient on the basis of material available, can summon the accused. He said that in the present case, Special Judge (D.A.A.) has recorded his opinion on the basis of affidavits placed before him alongwith Protest Petition by complainant, and, therefore, it cannot be said that Special Judge (D.A.A.) has not applied his mind. He also contended that there is no bar for Special Judge (D.A.A.) to consider material placed before him by complainant alongwith Protest Petition. 7. I have heard learned counsels for parties and perused the record. 8. Chapter XIV, Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Section 190, relevant for our purpose, is reproduced as under: “190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” 9. Chapter XV, thereafter has four Sections, i.e., Section 200 to 203, which deal with complaint to Magistrate. Chapter XVI deals with commencement of proceedings before Magistrate and Section 204 empowers a Magistrate to issue summons or a warrant, as the case may be, to secure attendance of an accused, if in the opinion of Magistrate, there is sufficient ground to proceed and take cognizance of offence. 10. Chapter XVI deals with commencement of proceedings before Magistrate and Section 204 empowers a Magistrate to issue summons or a warrant, as the case may be, to secure attendance of an accused, if in the opinion of Magistrate, there is sufficient ground to proceed and take cognizance of offence. 10. If magistrate finds that Police has not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused. 11. As long back as in 1977, Court in Tula Ram v. Kishore Singh, AIR 1977 SC 2401 , said that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with. 12. In M/s India Carat Pvt. Ltd. v. State of Karnataka, 1989 (26) ACC 280 (SC), Court has observed in para 16 of judgment that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently apply his mind to the facts emerging from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. Following observations of Court fortify what is observed above: “16. 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. Following observations of Court fortify what is observed above: “16. 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 the 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 investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of 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 Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him. 17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram and others v. Kisohre Singh, 1978 (1) SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.” (emphasis added) 13. The observations made in para 16 and 17 in M/s India Carat Pvt. Ltd. v. State of Karnataka (supra) make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not properly made investigation and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process. 14. In Gangadhar Janardan Mhatre v. State of Maharashtra and others, 2004 (7) SCC 768 , Court reiterating above view, said as under: “The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 119(1)(b) and direct the issue of process to the accused.” (emphasis added) 15. Having said so, Court has also made it clear that while proceeding to issue process considering facts emerging from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202. Having said so, Court has also made it clear that while proceeding to issue process considering facts emerging from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 for taking cognizance, but he cannot mix-up the material placed by complainant alongwith Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter 15. 16. A similar view has also been expressed in Rakesh and another v. State of U.P. and another, 2014 (13) SCC 133 , where Court referred to and relied on the decision in H.S. Bains v. State (UT of Chandigarh), 1980 (4) SCC 631 . 17. In Minu Kumari and another v. State of Bihar and others, 2006 (4) SCC 359 , Court said as under: “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 has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance 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 the 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 Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.” 18. In Sunil Bharti Mittal v. Central Bureau of Investigation, 2015 (4) SCC 609 , Court said: “... even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and another, 2003 (6) SCC 195 . Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.” 19. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference. 20. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.” 19. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference. 20. In Pakhando and others v. State of U.P. (supra), a Division Bench of this Court after considering Section 190 Cr.P.C. has held if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them: (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; (II) He may take cognizance under Section 190(I)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(I)(b) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. 21. Thus the “material” which can be examined by Magistrate when Police submitted final report and upon notice issued to complainant, Protest Petition is filed alongwith some material by complainant, is confined to investigation only. When matter has been investigated by Police after registering a report, Magistrate obviously is not proceeding according to procedure prescribed in Chapter XV. I find that it would not be appropriate for Magistrate not to follow procedure under Section 200 and 202 Cr.P.C. but straightway relying on affidavits filed before him by complainant alongwith Protest Petition, take cognizance and summon accused after rejecting Police Report. This is not legal and permissible. 22. I find that it would not be appropriate for Magistrate not to follow procedure under Section 200 and 202 Cr.P.C. but straightway relying on affidavits filed before him by complainant alongwith Protest Petition, take cognizance and summon accused after rejecting Police Report. This is not legal and permissible. 22. In Mohammad Yusuf v. State of U.P., 2007(9) ADJ 294 , Police submitted final report which was not accepted by Magistrate, not on the basis of material collected by Police, but, relying on Protest Petition and accompanying affidavit Magistrate issued process. Court disapproved the aforesaid procedure adopted by Magistrate and said: “Where the magistrate decides to take cognizance under Section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190 (1) (b) Cr.P.C. the impugned order is vitiated.” (emphasis added) 23. In Kallu and others v. State of U.P., 2010 (69) ACC 780, Court said: “Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in Section 200 and 202 Cr.P.C.” 24. Court further held: “If after taking evidence under Section 200 and 202 Cr.P.C., the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance.” (emphasis added) 25. In Mitrasen Yadav v. State of U.P., 2010 (69) ACC 540, Court said that on the basis of Protest Petition and documents filed therewith, no cognizance under Section 190(1)(b) Cr.P.C. can be taken. 26. In Mukeem and 2 others v. State of U.P. and another, 2015(10) ADJ 23 (NOC), Court while deprecating procedure followed by Magistrate by relying on Protest Petition and its documents, without following procedure of complaint, said: “The impugned order shows that the Magistrate summoned accused persons presuming that oral evidence on behalf of first informant was adduced on protest petition, which is possible only when the protest petition was ordered to be treated as a complaint. The record shows that neither protest petition was ordered to be registered as complaint nor any oral evidence of the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there was no sufficient material for taking cognizance. The learned Magistrate has also observed that the I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also based on facts mentioned in the protest petition and documentary evidence, as mentioned in the order impugned ^^izLrqr izksVsLV izkFkZuki= o vfHkys[kh; lk{; ds vk/kkj ij** which is erroneous in view of the law cited above.” (Emphasis added) 27. In Writ Petition-Misc. Single No. 3776 of 2012 (Mohammad Shafiq Khan and others v. State of U.P. and others) decided on 24.3.2014, Court, in para 9, held as under: “9. Therefore, it is clear from the above that the Magistrate on the basis of protest petition can reject the final report, he may treat the protest petition as complaint, he may also direct for further investigation. Therefore, it is clear from the above that the Magistrate on the basis of protest petition can reject the final report, he may treat the protest petition as complaint, he may also direct for further investigation. But in the facts of this case the Magistrate while rejecting the final report has also taken into consideration the affidavits filed alongwith protest petition and this approach of the Magistrate was not in accordance with law.” (emphasis added) 28. Looking to exposition of law, discussed above, I find that in the present case, learned Special Judge (D.A.A.), Agra rejected final report on the basis of facts stated in protest petition, and relying on affidavits and injury reports filed before him alongwith protest petition, has proceeded to issue non-bailable warrant against accused revisionists. Affidavits would not amount to a statement recorded by Special Judge (D.A.A.), Agra under Section 200 and 202 Cr.P.C. Special Judge (D.A.A.), Agra has not given any reason for rejecting Police report and nothing has been said in this regard, except that in the light of affidavits placed before him alongwith Protest Petition, he finds that final report is liable to be rejected and accused should be summoned. This approach on the part of Special Judge (D.A.A.), Agra, I find contrary to what has been laid down in the above authorities and same cannot be sustained. 29. In the result, revision is allowed. Impugned order dated 24.7.2004 is hereby set aside. 30. Now Special Judge (D.A.A.), Agra shall pass fresh order on Final Report and Protest Petition in the light of observations made above and in accordance with law, expeditiously, and, in any case within three months from the date of receipt of certified copy of this order. 31. Certify this judgment to the lower Court immediately.