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2022 DIGILAW 1674 (ALL)

Dalveer Singh v. State of U. P.

2022-10-18

JYOTSNA SHARMA

body2022
JUDGMENT : 1. Heard Sri Arvind Prabodh Dubey, learned counsel for the petitioner and learned AGA for the State. 2. This petition under Article 227 of the constitution has been filed with a request to set aside the order dated 24.09.2021 passed in Criminal Revision No. 143 of 2017 (Tarkeshwar Prasad and Others vs. State of U.P. and Others), Police Station-Cantt, District-Gorakhpur as well as order dated 03.03.2017 passed by the Chief Judicial Magistrate in Complaint Case No. 2861 of 2016 (Prakash vs. Tarkeshwar and Others) under Sections 419, 420, 406 IPC. 3. The facts relevant leading to this petition are as below. A FIR Case Crime No. 1414 of 2010 was lodged against the petitioner and five other persons with the allegations that the informant-Prakash (respondent no. 2 in the present petition), and the petitioner Dalveer Singh were friendly with each other. Dalveer Singh and his associates made the respondents to believe that he will get them employed in B.S.F. On this pretext, he extorted different amounts from the respondent no. 2, his brother and several other victims (named in the FIR) and the money was deposited in Bank account of Dalveer Singh. They received a joining letter, which turned out to be forged and fabricated. When protested, he assured to return the money and asked them not to take any legal action lest he may not be in a position to return the same, however, after eliciting lot of time on different excuses, Dalveer Singh and his associates ultimately refused to return the amount. In this way, several persons including the informant were cheated of their hard earned lakhs of rupees. On the basis of this FIR, the investigation was conducted, however, the investigating officer was of the opinion that the real dispute was something else and submitted a final report. Against the final report, a protest petition was filed by the respondent no. 2-Prakash. The petition was ordered to be registered as a complaint case. The statement under Sections 200 and 202 Cr.P.C., were recorded and the learned trial court passed a summoning order dated 03.03.2017 under Section 419, 420, 467, 468, 471, 406, 323, 504 and 506 IPC. Against the final report, a protest petition was filed by the respondent no. 2-Prakash. The petition was ordered to be registered as a complaint case. The statement under Sections 200 and 202 Cr.P.C., were recorded and the learned trial court passed a summoning order dated 03.03.2017 under Section 419, 420, 467, 468, 471, 406, 323, 504 and 506 IPC. This summoning order was challenged by Dalveer Singh-the petitioner and one Tarkeshwar Prasad by filing a Criminal Revision No. 143 of 2017, however, the same was dismissed by order dated 24.09.2021 and the order of the trial court was affirmed. Against the order passed by the revisional court, the petitioner has come before this Court under Article 227. 4. It is contended on behalf of the petitioner that in fact respondent no. 2 took a loan of Rs. 5,00,000/-from the petitioner and he wanted to avoid its repayment, therefore, the petitioner has been falsely implicated in this case; the revisional court without appreciating the arguments of the petitioner, dismissed the revision and affirmed the order of the trial court; the revisional court failed to see that the trial court passed the summoning order in a routine and arbitrary manner and without properly appreciating the evidence on record; the revisional court failed to appreciate the evidence collected by the investigating officer to the effect that the case of the informant was false and concocted. 5. Apart from arguing on some factual aspects of the case, two legal points have been raised. Firstly, that a protest petition cannot be treated as a complaint unless it fulfills the requirements of a complaint as defined under Section 2(d) of Cr.P.C., therefore, the order is bad in law. Secondly, that there was no list of witnesses which was must with the protest petition, therefore, the protest petition cannot be treated as a complaint and the trial court was wrong in proceeding on the basis of such complaint/protest petition. 6. It is settled law that after investigation, when a final report is submitted, the Court has several options open. Secondly, that there was no list of witnesses which was must with the protest petition, therefore, the protest petition cannot be treated as a complaint and the trial court was wrong in proceeding on the basis of such complaint/protest petition. 6. It is settled law that after investigation, when a final report is submitted, the Court has several options open. Where the Court, instead of rejecting the final report, decides to proceed in the matter on the basis of protest petition treating it as a complaint, in my view, it cannot be expected from the informant that he should have foreseen such an option being adopted and he should have referred to all the facts as is required where the complainant decides to file a complaint case directly. 7. Clause (d) of Section 2 of Cr.P.C., defines the complaint as an allegation made orally or in writing to a Magistrate under this Code. No particular format of complaint has been given in the Code of Criminal Procedure. The only requirement is that the allegations should be there and such allegations should be made with a view to mobilize the authority of the Magistrate or the Court for taking action against the offenders. It may also be noticed that the complaint may be made orally also. It stands to reason that when a trial court is proceeding on a protest petition, there must be material, which is sufficient enough to enable the Court to proceed against the accused persons. There is no provision in law that at such stage the Magistrate is powerless to look into and evaluate the evidence as collected by the Investigating Officer. In certain cases, there may be good reasons prompting the Magistrate to not to proceed as police case. Some of the reasons may be that investigation is deficient as some of the evidence whether oral or documentary is not collected or if collected, is not appreciated in the right perspective by the Investigating Officer or the manner of questioning the witnesses may have been faulty and may be some other facts and circumstances, which cannot be enumerated or foreseen here. Further there may be instances where the Court agrees with the Police report whether it is a chargesheet or a final report partly and partly not. Further there may be instances where the Court agrees with the Police report whether it is a chargesheet or a final report partly and partly not. Now, the question may arise whether the Court, while deciding not to proceed as a Police case on the basis of protest petition instead decides to proceed as a complaint case albeit on the basis of same protest petition, transgresses its powers in taking notice of the evidence collected during the investigation? This fact cannot be under estimated that even if a final report is submitted by the Investigating Officer for some good or not so good reason, the spot inspection, the postmortem report, the medical examination report, the recovery of blood stained earth or blood stained clothes or weapon of offence, even the FIR or any other material collected during the investigation may be of great assistance to the Courts. It may importantly be noticed that where the Magistrate proceeds in a complaint case, he has powers to order for police investigation, if required, under Section 202 Cr.P.C. In my view, if he already has such material which could have been collected, if he chose to exercise such powers under Section 202 Cr.P.C., then how can he be expected to look sideways and ignore the material already available before him. The law cannot be interpreted in such a manner so as to thwart justice. The goal of all procedural laws is attainment of justice or at least illuminate the path to attain such a goal. A police report under Section 173(2) Cr.P.C. is within his ken, as it forms part of material on record. In my firm opinion, it can be put to good use for the purpose of summoning the accused. The Courts are concerned with substantive justice rather than with the form or technicality or procedural formalities. Obviously, on the other hand, if the material before the Court, which may include the evidence collected by the Investigating Officer and other papers are deficient in some respect or which fail to give complete picture of the case, the Court may decide not to proceed. In my opinion, if the allegations, as contained in the protest petition coupled with material on record are sufficient to enable the Court to proceed, the such course of action cannot be faulted on technical grounds. 8. In my opinion, if the allegations, as contained in the protest petition coupled with material on record are sufficient to enable the Court to proceed, the such course of action cannot be faulted on technical grounds. 8. Section 204(2) Cr.P.C. which deals with issuing of process in criminal case is as below:- "No summons or warrant shall be issued against the accused under subsection (1) until a list of the prosecution witnesses has been filed." As far as the lack of list of witness is concerned, it is always open for the Court to call for the same and take suitable action either refusing to proceed further or passing some other appropriate order in terms of provisions of Section 204(2) Cr.P.C. The proceeding cannot be quashed on this technicality. 9. It is settled proposition of law that while exercising supervisory jurisdiction under Article 227, the High Court will not convert itself in the Court of appeal and indulge in re-appreciation or re-valuation of evidence or correct errors of formal or technical character. The High Court may decide to intervene where non-intervention may result in travesty of justice or where such refusal would result in prolongation of the litigation. The underlying policy is that the Courts should remain within their legal bounds for the sake of orderly administration of justice. The powers, for good reasons are to be exercised sparingly when the ends of justice, in the peculiar fact and circumstances of the case, so demand. 10. In view of the scope of powers, as available under Article 227 of the Constitution, no case is made out for such interference. It may be noted that as per the allegations in the FIR, not only large amount of money was siphoned out from the victim-respondent no. 2, but it was so meticulously planned that a forged order of appointment was also issued. Though, after investigation, the Investigating Officer submitted a final report, however, the Court decided to proceed as a complaint case on the basis of protest petition. It may also be noted that the petitioner has been summoned in the case after considering the oral statement recorded under Sections 200 and 202 Cr.P.C. and other material on record. Defect in the format or form of the protest petition or for the reason that the list of witnesses was not submitted cannot be given importance out of proportion at this stage. Defect in the format or form of the protest petition or for the reason that the list of witnesses was not submitted cannot be given importance out of proportion at this stage. If done, it will tantamount to taking too technical a view. In my opinion, no ground for interference under Article 227 is made out, hence the petition is dismissed. 11. Let copy of this order be certified to the court concerned.