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2023 DIGILAW 2873 (ALL)

Shree Om v. State Of U. P.

2023-12-21

ANISH KUMAR GUPTA

body2023
JUDGMENT : 1. Heard Shri Amit Daga, learned counsel for the applicant and Shri Pankaj Srivastava, learned A.G.A. for the State. 2. The instant application under section 482 Cr.P.C. has been filed seeking quashing of the order dated 17.1.2020 passed by Chief Judicial Magistrate, Hathras in Criminal Case No. 470/12 of 2018 (now numbered as Criminal Case No. 453 of 2020) "State of U.P. Vs. Shree Om and others" arising out of Case Crime No. 1481 of 2017 under sections 147, 149, 307, 436, 120-B I.P.C. police station Sadabad, District Hathras. 3. The facts, in brief, of the instant case are that the applicant no. 1 and the opposite party no. 2 are the real brothers and the applicants no. 2 and 3 are the sons of applicant no. 1. There was property dispute between the applicant no. 1 and the opposite party no. 2 and various litigation with regard to property dispute between them are already pending. In the night intervening 16/17.12.2017, the fire took place in the shops owned by the opposite party no. 2 which were let out to somebody else. Taking the advantage of the said fire incident, the instant FIR has been registered by the opposite party no.2 against the applicants as well as other co-accused, namely, Dalveer Singh who is the Advocate of the applicants herein and pursuing their cases before the trial court. For the same incident another FIR was registered by the tenant of the shop on 18.12.2017 stating that fire has taken place in which they have suffered huge loss. During the investigation, the opposite party no. 2 and some of the witnesses have been produced and they have stated that they have seen the applicants running away after the fire took place in the shops. After due and proper investigation of the case a final report was filed by the investigating agency on 16.2.2018. On protest petition being filed by the opposite party no. 2 the said final report dated 16.2.2018 was rejected on 26.7.2018 and the C.J.M. Hathras directed for further investigation in the matter. The matter was again investigated and further final report dated 19.11.2018 was filed by the investigating agency. Thereupon again the protest petition was filed by the opposite party no. 2. Thereafter, considering the entire material in the final report, learned Magistrate vide order dated 17.1.2020 rejected the said final report. The matter was again investigated and further final report dated 19.11.2018 was filed by the investigating agency. Thereupon again the protest petition was filed by the opposite party no. 2. Thereafter, considering the entire material in the final report, learned Magistrate vide order dated 17.1.2020 rejected the said final report. However, summoned the applicants herein as well as the co-accused Dalveer Singh for the offences under sections 147, 149, 307, 436, 120-B I.P.C. Against the said order dated 17.1.2020 one of the co-accused, namely, Dalveer Singh, who was the Advocate and representing the applicants in the trial court, filed a Revision No. 57 of 2021, which was disposed of by the Sessions Judge, Hathras vide order dated 11.10.2021 whereby the learned Sessions Judge remanded back the matter directing the revisionist to approach for discharge before the Magistrate, which shall be decided on merit. Against the said order, the opposite party no. 2 filed a petition under Article 227 No. 238 of 2022 which was disposed of vide order dated 25.1.2022 by this Court holding that since the offences under sections 147, 149, 307, 436, 120-B I.P.C. are triable by Sessions Court, therefore, the matter could not have been remanded back and the other co-accused could not have been directed to approach the C.J.M.for discharge, therefore, in the light of the aforesaid observation the order dated 11.10.2022 was set aside and the matter was remanded back to the Sessions Judge for fresh decision. Thereupon the learned Sessions Judge, Hathras vide order dated 6.7.2022 has allowed the said revision and set aside the order dated 17.1.2020 in respect of the cognizance taken against the revisionist, who is one of the co-accused in the instant case. Now the instant application has been filed by the applicants challenging the order dated 17.1.2020 passed by the learned Magistrate. 4. Learned counsel for the applicants submits that vide order dated 17.1.2020 the C.J.M. Hathras has rejected the final report submitted by the investigating agency and at the same time the learned Magistrate has taken cognizance against the applicants as well as against the co-accused person for the offences under sections 147, 149, 307, 436, 120-B I.P.C.under section 190(1)(b) Cr.P.C. Learned counsel for the applicant, therefore, submits that as per section 190(1)(b) Cr.P.C. the cognizance can be taken by the learned Magistrate only on a police report of such facts. However, since the police report in the instant case has already been rejected, therefore, there was no material before the Magistrate on which the Magistrate could have taken the cognizance. In support of his submission learned counsel for the applicant has relied upon the judgement of the Apex Court in the case of Vishnu Kumar Tiwari Vs. State of U.P. and another (2019) 8 SCC 27 . Learned counsel for the applicant has also relied upon a judgement passed by this Court in Application u/s 482 No. 10032 of 2022 (Shahid and others Vs. State of U.P. and others), wherein this Court has held as under: "Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record, this Court finds that once Court below rejected the police report (final report) then Court below could not have taken cognizance upon aforesaid Police report. The course of action open to court below was to disapprove (Aswikar) the report. This having not been done, the impugned order is illegal perverse and unsustainable in law." 5. Per contra, learned A.G.A. for the State submits that the Magistrate disagreeing with the conclusion drawn by the investigating agency rejected the final report and has rightly taken the cognizance under section 190(1)(b) Cr.P.C. therefore, there is no error in the order passed by the Magistrate. 6. Having heard the rival submission made by learned counsel for the parties, this court has carefully gone through the record of the case. Therefore, the limited question involved in the instant case is as to whether while rejecting the final report submitted after due investigation by the investigating agency, the Magistrate can take cognizance under section 190(1)(b) Cr.P.C. ? Section 190(1)(b) reads as under: "190. Cognizance of offences by Magistrates. (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." 7. From bare reading of the aforesaid provision it is clear that as per section 190(1)(b) Cr.P.C. it is open for the Magistrate to take cognizance on a police report irrespective of the conclusion drawn by the investigating officer. 8. The Apex Court in the case H.S. Bains Vs. State (1980) 4 SCC 631 , in paragraph 7 has held as under: “7. In Abhinandan Jha v. Dinesh Mishra [ AIR 1968 SC 117 : (1967) 3 SCR 668 : 1968 Cri LJ 97] , the question arose whether a Magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the Magistrate was of the opinion that the fact set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. ………………………… We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. …………....” (emphasis supplied) 9. In the case of M/s India Carat Pvt. Ltd. Vs. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. …………....” (emphasis supplied) 9. In the case of M/s India Carat Pvt. Ltd. Vs. State of Karnataka and another, (1989) 2 SCC 132 the Apex Court in paragraph 16 and 17 has held as under: “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 Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. …….... 17. ………... It has been held in Tula Ram v. Kishore Singh [ (1977) 4 SCC 459 : 1977 SCC (Cri) 621 : (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.” 10. The Apex Court in the case of Union of India Vs. Prakash P. Hinduja and another (2003) 6 SCC 195 in paragraph 14 has held as under: “14. The Magistrate is no doubt not bound to accept the final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 CrPC. The statutory provisions are, therefore, absolutely clear that the court cannot interfere with the investigation.” 11. In Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768 , the Apex Court in paragraph 9 has held as under: “9. …..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 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 Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under section 200 or Section 202 also.” 12. Paragraph 27 of the judgment in the case of Vishnu Kumar Tiwari (supra) relied by learned counsel for the applicant reads as under: “27. It is undoubtedly true that before a Magistrate proceeds to accept a final report under Section 173 and exonerate the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the investigating officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. While the investigating officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, finally decide the future course of action to be, whether to continue with the matter or to bring the curtains down.” (emphasis supplied) 13. In the same judgement of Vishnu Kumar Tiwari (supra) it is worth mentioning that the Apex Court has held in paragraph 18 and 42 as under: “18. Thus, when he proceeds to take action by way of cognizance by disagreeing with the conclusions arrived at in the police report, he would be taking cognizance on the basis of the police report and not on the complaint. And, therefore, the question of examining the complainant or his witnesses under Section 200 of the Code would not arise. This was the view clearly enunciated. 42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.” 14. A coordinate Bench of this Court in Application u/s 482 No. -5500 of 2023 (Asif Ahmad Siddiqui Vs. State of U.P. and another) decided on 26.4.2023 has held in paragraphs 19, 20 and 21 as under: “19. It is not disputed by the learned counsel appearing for the parties that the Magistrate is empowered to take cognizance under Section 190(1) CrPC in either of the three contingencies namely:- (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. 20. The cognizance of the offence can be taken on the basis of the police reports as envisaged in Clause (b) of Section 190(1) CrPC irrespective of the opinion of the Investigating Officer that prima facie no case is made out, if the material collected and the statements of the witnesses recorded under Section 161 CrPC, in the opinion of the Magistrate, are sufficient to make out a prima facie case against the accused persons. 21. 21. Thus the position is very clear and 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 issuance 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 Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a), though, it is open to him to act under Section 200 or Section 202 also.” 15. Therefore, from the above noted judgements it is crystal clear that where an FIR has been filed and the Magistrate chooses to take cognizance of the matter disagreeing with the conclusion arrived at in the police report then such cognizance is taken on the basis of the police report and it is not mandatory for him to treat the protest petition so filed by the complainant as a complaint and then proceed in accordance with the provisions of Section 200 Cr.P.C. If the Magistrate take cognizance on the police report itself, then the procedure under section 200 Cr.P.C. is not required to be followed. From the aforesaid observations made in the judgements referred above it is crystal clear that when a final report is submitted by the police the Magistrate may agree or disagree with such police report and if he wants to agree with such final report filed by the police then it is mandatory for him to issue notice to the complainant and consider the protest petition after giving the opportunity to the complainant and if he found that the conclusion drawn by the police in its report is wrong or not sustainable then he may straight away proceed to take cognizance in the matter under section 190(1)(b) Cr.P.C. on the basis of the material brought on record alongwith the police report. 16. Therefore, in the instant case the learned Magistrate has considered the final report submitted by the police and entire material available before him even on the initial investigation and on the further investigation as directed by the Magistrate and on the basis of the material available before Magistrate he has found that the conclusion drawn by the investigating agency are not sustainable and thereupon he has rejected the said final report and has taken cognizance against the applicants herein. Therefore, in the considered opinion of this Court there is no infirmity in the order passed by the learned Magistrate rejecting the final report and taking the cognizance against the applicants herein. 17. So far as the judgement of another Coordinate Bench of this Court in the case of Shahid and other (supra) relied upon by the learned counsel for the applicant is concerned, in the light of the judgements of the Apex Court, referred to herein above, the same is not in conformity with the aforesaid judgments of the Apex Court and, therefore, is of no help to the applicants herein. 18. For the reasons afore stated, the instant application is devoid of merit and is hereby dismissed.