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2022 DIGILAW 695 (ALL)

Yunus v. State of Uttar Pradesh

2022-05-05

RAHUL CHATURVEDI

body2022
JUDGMENT : 1. Heard Shri Prem Shankar Mishra, learned counsel for the revisionists; Shri Bhuvnesh Kumar Singh, learned counsel for opposite party no.2 and learned A.G.A. for the State. Perused the record. 2. The instant criminal revision is being filed by the revisionists Yunus, Kamil and Alim, assailing the legality and validity of impugned order dated 01.02.2021 passed by the Judicial Magistrate, Chandpur, Bijnor in Criminal Case No.391 of 2019 (State vs. Kamil and others), arising out of Case Crime No.223 of 2018, u/s 323, 324, 325, 504, 506 I.P.C., P.S.-Shivala Kala, District-Bijnor, whereby learned Magistrate has taken cognizance against the revisionists for the offence u/s 323, 324, 326, 504, 506 I.P.C., while responding to the application dated 31.5.2019 filed by the prosecution at pre-cognizance stage. 3. Long and short of the submissions advanced by learned counsel for the revisionists is that on 21.11.2018 a F.I.R. was got registered for the incident said to have taken place on 9.9.2018 by Mohd. Akram u/s 307, 323, 504, 506 I.P.C. against Kamil, Alim and one unknown person. This F.I.R. was registered routed through an Application u/s 156(3) of Cr.P.C. with the allegation that the contesting parties were political opponents and on this score they were nurturing an inimical relationship. On 9.9.2018 around 06.30 in the evening when the informant was coming to his home, in the way, near a culvert, he was ambushed by Kamil, Alim and one unknown armed with tabbal and knife. They started hurling filthy abuses and thereafter assaulted upon him. Alim was armed with tabbal, who had given a deadly blow over his head, whereas Kamil had assaulted by knife over his head and unknown person had brutally assaulted with lathi-danda. This incident was witnessed by co-villagers and on making challenge by them, the assailants ran away giving threatening to kill the informant. Mohd. Akram who is the informant, is the main injured and he was put for medical examination. From the medical examination report it transpires that the injured has sustained six injured over his person, including the incised wounds and contused swelling. The injured was referred for X-Ray of skull and chest. Supplementary report indicates that there is head injury over the injured and C.T. scan of the head was advised. From the medical examination report it transpires that the injured has sustained six injured over his person, including the incised wounds and contused swelling. The injured was referred for X-Ray of skull and chest. Supplementary report indicates that there is head injury over the injured and C.T. scan of the head was advised. C.T. scan report dated 10.9.2018 shows (i) multiple depressed fractures of frontal bone on left side, (ii) fractures of left zygomatic and left orbit and (iii) multiple small hemorrhagic contusions at left frontal lobe. In the opinion of doctor, head injuries are grievous in nature and in the X-Ray report also multiple depression of fracture is observed. After recording the statements of the injured and the doctor, the Investigating Officer of the case, it appears that in order to oblige the accused, changed the texture of the case by dropping Section 307 of I.P.C. from the array of sections mentioned in the F.I.R. and submitted charge-sheet dated 13.2.2019 against the revisionists u/s 323, 324, 325, 504, 506 of I.P.C. 4. Stunned and dissatisfied by this report u/s 173(2) Cr.P.C. submitted by the I.O., the informant moved an application on 31.5.2019 challenging the opinion of the I.O. that keeping in view the gravity, seat and nature of injuries, instead of Sections 323, 324, 325, 504, 506 of I.P.C., the I.O. of the case ought to have submitted charge sheet inserting Sections 307, 308 of I.P.C. among other sections as per prosecution case. It is not out of place to mention here that the application on behalf of prosecution was instituted at pre-cognizace stage. 5. At the stage of taking cognizance, learned Magistrate after taking into account the material collected by the I.O. during investigation and the objection raised by the informant vide application dated 31.5.2019, have passed the present impugned order dated 01.2.2021 (cognizance order) whereby he has taken cognizance of the offences u/s 323, 324, 326, 504, 506 I.P.C. 6. 5. At the stage of taking cognizance, learned Magistrate after taking into account the material collected by the I.O. during investigation and the objection raised by the informant vide application dated 31.5.2019, have passed the present impugned order dated 01.2.2021 (cognizance order) whereby he has taken cognizance of the offences u/s 323, 324, 326, 504, 506 I.P.C. 6. Learned counsel for the revisionists seriously disputed the impugned order passed by the learned Magistrate by making a mention that this is not a stage where the Magistrate can change the texture of the case by inserting the additional sections or replacing the same by more grievous sections of the I.P.C. Learned counsel for the revisionist in this regard has relied upon the judgement of Hon'ble Apex Court in State of Gujarat vs. Girish Radhakrishnan Varde in Criminal Appeal No.1996 of 2013 decided on 25.11.2013. Learned counsel for the revisionists has emphasized on paragraphs 11 and 19 of the said judgement, which read thus : "11. While analysing the controversy raised in this appeal, it is clearly obvious that the entire dispute revolves around the procedural wrangle and the correct course to be adopted by the trial court while taking cognizance but in the entire process it appears that the distinction between a case lodged by way of a complaint before the magistrate commonly referred to as complaint case under Section 190 of the Cr.P.C. and a case registered on the basis of a first information report under Section 154 of the Cr.P.C. before the police, seems to have been missed out, meaning thereby that the distinction between the procedure prescribed under Chapter XII of the Cr.P.C. to be adopted in a case based on police report and the procedure prescribed under Chapter XIV and Chapter XV for cases based on a complaint case lodged before the magistrate has clearly been overlooked or lost sight of. It may be relevant to record at this stage that the term 'complaint' has been defined in the Cr.P.C. and it means the allegations made orally or in writing to a magistrate, with a view to taking action under the Code due to the fact that some person, whether known or unknown, has committed an offence but does not include a police report lodged under Section 154 Cr.P.C. Section 190(1) of the Cr.P.C. contains the provision for cognizance of offences by the Magistrates and it provides three ways by which such cognizance can be taken which are reproduced hereunder:- (a) Upon receiving a complaint of facts which constitute such offence; (b) upon a police report in writing of such facts--that is, facts constituting the offence--made by any police officer; (c) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such. facts made by any police officer it is a case instituted in the Magistrate's court on a police report. The scheme underlying Cr.P.C. clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to the court." 7. I have carefully gone through the order impugned as well as the facts and circumstances of the case. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to the court." 7. I have carefully gone through the order impugned as well as the facts and circumstances of the case. It is apparent on the face of record from the perusal of material evidence collected during investigation, that there is explicit incompatibility between the offences/sections mentioned in the charge sheet submitted by the Investigating Officer and the offences made out from the material collected during investigation. As mentioned above, in the instant case the police on 13.2.2019 have submitted a charge sheet u/s 323, 324, 325, 504, 506 of I.P.C. against Kamil, Alim and Yunus. 8. Aggrieved by the changing of colour and texture of the case, an application was moved by the injured-informant himself on 31.5.2019 (Annexure No.4 to the petition) whereby detailed allegation has been levelled that Tabbal, knife and lathi-danda were used while making assault and injured sustained grievous injuries corresponding to the said weapons over the vital parts i.e. skull and chest. Not only this, there are depressed fractures over the frontal bone and there is a hemorrhage inside the brain of the injured and as per the supplementary medical report, the injuries sustained by the injured are grievous in nature. 9. This is a pre-cognizance stage, where the Magistrate has not taken the cognizance of the offence. Charge-sheet/police report u/s 173(2) of Cr.P.C. is nothing which is simply an opinion of the Investigating Officer based on the material collected during investigation and it is not binding or mandatory upon the Magistrate. The Magistrate may or may not agree with the opinion of the Investigating Officer. It is clear that the cognizance of the offence was taken on 01.2.2021, responding to the application moved by the informant dated 31.5.2019. Prior to this, there was no cognizance order on record. The Magistrate has every right to defer his opinion from the opinion of the Investigating Officer, on the basis of material on record by passing a speaking order. 10. I have perused the order impugned, which reflects judicial application of mind by the learned Magistrate. Prior to this, there was no cognizance order on record. The Magistrate has every right to defer his opinion from the opinion of the Investigating Officer, on the basis of material on record by passing a speaking order. 10. I have perused the order impugned, which reflects judicial application of mind by the learned Magistrate. Learned Magistrate after assessing the entire material collected during investigation found that Investigating Officer has wrongly submitted charge sheet u/s 323, 324, 325, 504, 506 I.P.C., which was not in consonance with the gravity of offences made out on the basis of material collected during investigation. 11. After appreciated the material on record and the application, learned Magistrate was not in agreement with the opinion formed by the Investigating Officer of the case and has dropped Section 325 I.P.C. and replaced it by Section 326 of I.P.C., in addition to Sections 323, 324, 504, 506 I.P.C. I do not find any illegality or infirmity in the impugned order. Taking into account the totality of circumstances, I am not inclined to upset the order impugned or substitute the discretion exercised by the learned Magistrate. 12. However, it is given to understand that the revisionists Kamil and Alim have got themselves bailed out in Sections 323, 324, 326, 504, 506 I.P.C., except Yunus, as such, revisionist Yunus is directed to surrender before the court concerned by 15.6.2022 and apply for bail in added Section 326 I.P.C., which shall be heard and decided by the concerned court below on the same day. 13. It is open for the revisionists that after getting themselves bailed out, they may take recourse of the appropriate provisions of the Code of Criminal Procedure at appropriate stage for seeking discharge, if so advised. 14. With the above observation this revision stands disposed off.