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2018 DIGILAW 887 (ALL)

RAHUL v. STATE OF U. P.

2018-04-12

AMAR SINGH CHAUHAN

body2018
JUDGMENT : Hon'ble Amar Singh Chauhan,J. Heard Sri V.M. Zaidi, Senior Advocate, assisted by Sri Pradeep Kumar Bhardwaj, learned counsel for the applicants, Sri B. Malik for the opposite party no. 2, learned AGA and perused the material on record. The applicant, Rahul and four others, through this application moved under Section 482 Cr.P.C, have invoked the inherent jurisdiction of this Court with a prayer to quash the impugned order dated 15.1.2009 passed by Chief Judicial Magistrate, (CJM), Bulandshahr, in Case No. 417 of 2009 (State Vs. Rahul and others) under Sections 147, 148, 149, 307 and 506 IPC, P.S. Sikendrabad, District Bulandshahr and direct the court below to decide the bail application of the applicants on same day in the aforesaid case. Brief facts which are requisite to be stated for adjudication of this application are that an FIR was lodged by the opposite party no. 2 on 1.8.2008 against the applicants as Case Crime No. 635 of 2008 under Sections 147, 149, 307, 506 IPC at P.S. Sikendrabad, District Bulandshahr alleging that on 30.7.2008 at about 8:30 P.M. the son of the complainant as washing his face and hand in front of his house when suddenly applicant no. 1 Rahul armed with licensee rifle, Jitendra & Naveen armed with country-made pistol, Brahampal armed with licensee gun and Indrajeet armed with country-made pistol came on public hand pump and assaulted with the help of their weapon to the complainant. It is further alleged that the bullet of the rifle armed with Rahul received to the son of complainant namely Dharmendra and all accused persons also open fire with their weapons upon Dharmendra. On hue and cry brother of the injured person came on the spot thereafter all the accused person ran away extending threat to kill. The investigating officer after concluding the investigation submitted the final report against which the opposite party no. 2 filed a protest petition along with self affidavit and of other witnesses namely Ganga Ram, Surendra, Dharmendra, Smt. Shashi Devi wife of Bhim Singh and Smt. Maya wife of Ganga Ram. The Magistrate after considering the protest petition and affidavits summoned the applicants to face the trial which is proceeded as State case. Feeling aggrieved, the applicants approached this court by filing the present application seeking the above quoted reliefs. The Magistrate after considering the protest petition and affidavits summoned the applicants to face the trial which is proceeded as State case. Feeling aggrieved, the applicants approached this court by filing the present application seeking the above quoted reliefs. It is submitted by the learned counsel for the applicants that the learned Magistrate without perusal of case diary summoned the applicants in a routine way. He has only considered the protest petition and affidavit of the opposite party no. 2 and his witnesses, therefore, the said order is without jurisdiction and liable to be quashed. It is further submitted that the learned Magistrate without setting aside the final report as well as recording the statement under Sections 200 and 202 Cr.P.C., summoned the applicants. It is also submitted that the learned Magistrate without considering the facts and circumstances of the case, summoned the applicants only on the basis of protest petition and affidavits which are not permissible in the eye of law. Per contra, learned AGA as well as learned counsel for the opposite party no. 2 contend that the learned Magistrate has gone through the case diary and after configuration of the material contained in the case diary came to the conclusion that the accused may be summoned for facing trial under Sections 147, 148, 149, 307 and 506 IPC. The son of the opposite party no. 2, Dharmendra sustained grievous fire arm injury at its right thy which is fully corroborated by the contents of the first information report. The investigating officer has not investigated about the incident properly and in influence of the applicants, without perusing the injury report of the son of the opposite party no. 2 has illegally submitted the final report. The applicants have committed heinous offence. The learned Magistrate after perusing the injury report, statement of injured and medical evidence, has illegally passed the summoning order which is liable to be upheld by this Court. The opposite party no. 2 has placed reliance in the case of Minu Kumari and another Vs. State of Bihar and othes [(2006) SCC 359] in which the Apex Court has held that "the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. 2 has placed reliance in the case of Minu Kumari and another Vs. State of Bihar and othes [(2006) SCC 359] in which the Apex Court has held that "the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. Before adverting to the claim of the parties, it is necessary to reproduce the Section 190 Cr.P.C. which is as under: Cognizance of offences by Magistrate. 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." A Division Bench in the case of Mathura Prasad and others Vs. (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." A Division Bench in the case of Mathura Prasad and others Vs. State of U.P. and another [ 2007 (1) JIC 492 (all)] held that if the Magistrate after receiving protest petition and considering the police report if proceed to take cognizance under Section 190(1)(b) of the Code and issue process, he cannot look into any material placed before him along with protest petition except the material collected by the police and placed before him along with the report. However, if he treats the protest petition as complaint and proceeds to record statement of the complaint and the witnesses and thereafter issue process, the evidence placed before him alongwith protest petition may be relevant and may be considered by him. The reason for taking this view is where the Magistrate decides to take cognizance of a case under Section 190(1)(b) 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. This Court in case of Pakhandu vs. State of Uttar Pradesh, 2001 Law Suit (All) 620 held that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require: (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(1)(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(1)(a) 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. In the case in hand, the Magistrate contrary to provision prescribed under Section 190(1)(B) of the Cr.P.C. decide to take cognizance of the case as State case. It would be useful to make it clear at this stage that Magistrate if decide to take cognizance of the case under Section 190(1)(B) of the Code ignoring the conclusion arrived at by the investigating agency from the record of the investigation in such and eventuality, he is bound to follow the procedure laid down in Sections 200 and 202 Cr.P.C. and thus Section 202(2) will have no application. However, for the purpose of forming such an independent opinion, the Magistrate can act only upon the statement of the 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 record 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 present, if any, under Section 200 Cr.P.C. In view of what has been submitted and discussed above, the application is liable to be allowed. Accordingly, the application is allowed and the impugned order dated 15.1.2009 passed by Chief Judicial Magistrate, (CJM), Bulandshahr, in Case No. 417 of 2009 (State Vs. Rahul and others) under Sections 147, 148, 149, 307 and 506 IPC, P.S. Sikendrabad, District Bulandshahr is hereby quashed and the matter is remanded back to the concerned Court to decide afresh according to law.