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Allahabad High Court · body

2019 DIGILAW 35 (ALL)

Satish Chandra Srivastava v. State of U. P.

2019-01-04

SAURABH SHYAM SHAMSHERY

body2019
JUDGMENT : Saurabh Shyam Shamshery, J. 1. The applicant by means of this application under section 482 Cr.P.C. have invoked the inherent jurisdiction of this court with prayer to quash the impugned order dated 24.1.2006 passed in Complaint Case 44 of 2004, u/s 406 I.P.C., P.S. Daraganj, District Allahabad, Girish vs. Dr. Satish Chandra Srivastava, pending in the Court of Judicial Magistrate 1st, Allahabad, whereby the learned Magistrate, while allowing the protest petition has rejected the final report submitted by the police and has summoned the accused-applicant to face trial under the aforesaid sections. 2. Heard learned counsel for the applicant and learned A.G.A. for the State. No one appeared on behalf of O.P. No. 2, today though counter affidavit has been filed on behalf of O.P. No. 2. Perused the record. 3. The main ground on which the learned counsel for the applicant has challenged the legality and correctness of the impugned order is that the learned Magistrate, without adopting the proper procedure prescribed under section 190 Cr.P.C. has summoned the applicants, therefore, the impugned order is liable to be quashed. In support of his contention the learned counsel for the applicants has placed reliance on the following judgments of this court reported in Surya Bhan vs. State of U.P. and Others, (2007) 1 JIC 784 and Mohd. Yusuf and Others vs. State of U.P. and Another, (2008) 1 JIC 128 dated 22.9.2016 passed by this Court in application under Section 482 No. 4320 of 2007 and Hari Ram vs. State of U.P. (2016) 95 AllCriC 156. 4. The learned A.G.A. has opposed the application by contending that the final report has been rejected by the learned Magistrate on just and proper grounds and the applicant has rightly been summoned by the learned Magistrate considering that despite the fact that all the witnesses had fully supported the prosecution story, the I.O. arbitrarily had submitted final report in favour of the applicant. 5. O.P. No. 2 has mentioned in the counter affidavit that the deponent was cheated by the applicant of taking advantage in his possession as Doctor of Govt. and the deponent was assured that if he pays Rs. 5. O.P. No. 2 has mentioned in the counter affidavit that the deponent was cheated by the applicant of taking advantage in his possession as Doctor of Govt. and the deponent was assured that if he pays Rs. 80,000/- the son will be absorbed in X-ray Unit of some Private Hospital in District Allahabad and keeping in view that the applicant was having a good connection and got profile with the officials of the District and he has given the said amount to the applicant but neither appointment was given to his son, nor the money was refunded and as such the opposite party No. 2 filed application against the applicant. 6. Considered the rival submissions of learned counsel for the parties and perused the record. 7. The law regarding the issue involved in this application is well settled. 8. If in any case, the final report is submitted by the police, against which protest petition is filed by first informant, then the Magistrate has following three options:- 1. He may accept the final report and drop the proceedings. 2. He may direct the police for further investigation. 3. He may summon the accused on further two grounds:- (A) If he chooses to summon the accused on the basis of evidence collected by the Investigation officer, he may do so directly without any further evidence. or (B) If accused is summoned on the basis of protest petition, relying on extraneous material filed with protest petition, then he has to follow the procedure laid down under chapter XV of Cr. P.C. i.e. to treat the protest petition as complaint and record the evidence u/s 200 and 202 Cr P.C. and cognizance cannot be taken on the basis of extraneous material u/s 190 (1)(b) Cr.P.C. without following the aforesaid procedure. 9. The impugned order dated 24.1.2006 in the instant case clearly shows that the learned Magistrate, apart from considering the statements of witnesses available in the case diary, has also considered the affidavits filed along with the protest petition by the complainant. 9. The impugned order dated 24.1.2006 in the instant case clearly shows that the learned Magistrate, apart from considering the statements of witnesses available in the case diary, has also considered the affidavits filed along with the protest petition by the complainant. Relevant part of the order is mentioned below: ^^lquk o voyksdu fd;kA vkosnd us fnukad 6-12-2005 dks e; 'kiFk&i= vfUre vk[;k ds fo:} vkifRr lEcU/kh ÁkFkZuk&i= ÁLrqr fd;k gSA ifjoknh ds }kjk dgk x;k gS fd foospd us vfHk;qDrx.k ds ÁHkko esa vkdj ds vfUre vk[;k ÁLrqr dh gS vkSj eu&ekuh ls c;ku ntZ fd;s gSA foospd us vkosnd o mlds xokgku ds 'kiFk&i=ksa ij dksbZ /;ku ugha fn;k gSA vfHk;qDr ds gh dqN O;fDr;ksa dk c;ku mlds i{k esa fy[k djds xyr vfUre fjiksVZ Hksth gSA bl Ádkj ekeys ds leLr rF;ksa ,oa ifjLFkfr;ksa ds vUrxZr vfUre vk[;k fujLr gksus ;ksX; gSA^^ 10. In all the judgments cited by learned counsel for the applicants, this court has quashed the impugned order on the ground that the Magistrate had taken into account the extraneous material i.e. affidavits filed along with the protest petition while taking cognizance u/s 190(1)(b) Cr.P.C. 11. In Pakhandu and Others vs. State of U.P. and Another, (2001) 43 AllCriC 1096 , a Division Bench of this court has held as under: "16. Where the Magistrate decides to take cognizance of the case under section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code and consequently the proviso to section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and the material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records." 12. In Surya Bhan vs. State of U.P. and Others (supra) this court has held as under: "The Magistrate can act only upon the statements 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 of any material other than investigation records." 12. In Surya Bhan vs. State of U.P. and Others (supra) this court has held as under: "The Magistrate can act only upon the statements 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 of any material other than investigation records, unless he decides to take cognizance under section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200. This shows that the Magistrate while taking cognizance under Section 190(1)(b) can only rely on the police report that means evidence and material collected by the Investigating Officer during investigation. The Magistrate cannot, therefore, take into consideration any extraneous material and if he does so, he should take cognizance under section 190(1)(a) and should proceed in the matter as a complaint case." 13. The Hon'ble Apex Court in the land mark case of Dharam Pal and Others vs. State of Haryana and Another, (2014) 3 SCC 306 framed 6 questions for consideration and para 7.3, which is reproduced below, involved the same issue :- "Para 7.3 - Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?" 14. Answering the above said question in para 36 of the judgment, the Hon'ble Apex Court held as under:- "36. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court." 15. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court." 15. Considering the facts of the instant case, in wake of the settled legal position as stated above, the impugned order dated 24.1.2006, which clearly shows that the Magistrate has considered the extraneous material (affidavits filed along with the protest petition), cannot be sustained and is liable to be set aside. 16. The application is allowed. The impugned order dated 24.1.2006 is set aside and the matter is remanded back to the Magistrate concerned with the direction to make a fresh look and pass a fresh order in the light of the settled legal position, as discussed above.