Madhya Pradesh High Court
Shyam Bahu Agrawal vs State Of M.P on 8 July, 2014
1 M.Cr.C.No.1901/2013
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
Miscellaneous Criminal Case No.1901 OF 2013
Petitioners: 1- Shyam Babu Agrawal S/o Ramjee Das
Agrawal Aged 65 years, Occupation
Shopkeeper.
2- Brijesh Agrawal S/o Ramjee Das
Agrawal Aged 52 years, Occupation -
Shopkeeper.
3- Hariom Agrawal alias Bablu S/o Shyam
Babu Agrawal Aged 45 years,
Occupation -Shopkeeper.
4- Ashish Kumar Agrawal alias Ashu S/o
Brijesh Kumar Agrawal Aged 21 years
Occupation -Student.
All residents of Bajaj Khana, Morar
District Gwalior.
Vs.
Respondents: 1- State of Madhya Pradesh,
Through Police Station Morar District
Gwalior.
2- Anand Agrawal alias Lallu S/o Kamlesh
Kumar Agrawal Aged 32 years
Occupation -Shopkeeper resident of
Bajaj Khana, Morar District Gwalior.
For petitioners: Shri V.K. Saxena, Sr. Advocate assisted by
Shri Aditya Singh, Advocate.
For respondent No.1: Shri R.K. Awasthy, Public Prosecutor.
For respondent No.2: Shri Ankur Mody, Advocate for respondent
No.2.
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Present: HON'BLE SHRI JUSTICE B.D. RATHI
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2 M.Cr.C.No.1901/2013
ORDER
(08/07/2014) By invoking the extraordinary jurisdiction of this Court, petitioners have preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (in short 'the Code') calling in question the order dated 04-03-2013 passed in Criminal Revision No.66/2013 by learned 10th Additional Sessions Judge, Gwalior whereby the order dated 06-02-2013 passed by JMFC, Gwalior in Criminal Case No.5269/2011 was upheld. By preferring this petition, petitioners have prayed that the orders passed by learned Courts below be set aside, order of taking cognizance be set aside and petitioners be discharged.
2- The factual matrix, in brief, giving rise to this petition are that respondent No.2 Anand Agrawal alias Lallu had made a complaint to the police station against the petitioners alleging that on 29-09-2010 petitioners have encircled him and thereafter petitioner No.2 Brijesh has opened fire on him which has resulted in causing gun shot injury at left thigh. Since police had not taken any action therefore, a petition under Section 482 of the Code was filed by respondent No.2 before this Court bearing M.Cr.C.No.8032/2010 and vide order dated 09-12-2010, Station House Officer, Police Station Morar was directed to proceed with crime No.855/2010 lodged at Police Station, Morar and conduct a fair and impartial investigation. When no action was taken by police, contempt petition bearing No.83/2011 was moved against the police authorities and vide order dated 21-04-2011 it was directed by this Court that final report in relation to investigation in the aforesaid crime be produced before the concerning Court within a period of two weeks. Thereafter, on 06-06-2011 final report was produced by the police station, Morar stating that no offence is made out against the petitioners/accused persons in 3 M.Cr.C.No.1901/2013 absence of evidence. At the same time on 25-04-2011 one protest petition along with list of witnesses under Section 190(1) of the Code was moved by respondent No.2 seeking the relief that final report (Khatma) be disallowed, evidence of the complainant/respondent No.2 be recorded and order for arresting the accused petitioners be passed.
3- Thereafter, on 19-07-2011 final report (Khatma) produced by police was not accepted and cognizance has been taken on the basis of private complaint so called protest petition against the petitioners for the offence under Section 307/34 of IPC. The aforesaid order of taking cognizance against petitioners was put to test by petitioners by preferring Criminal Revision No.411/2011 before the Session Court which was allowed on 08-02-2012. The order of taking cognizance was set aside and the case was remanded back to the trial Court with a direction that entire evidence produced by the complainant be taken on record and after taking into consideration the facts mentioned in the final report produced by Police Station, Morar in crime No.855/2010, appropriate order on merits be passed. In compliance of the direction issued by revisional Court, statements of Saroj Devi, Radha Agrawal and Dr. C.P. Suman were recorded and after taking into consideration the evidence and the statements of witnesses recorded by the police under Section 161 of Cr.P.C. and the documents submitted by police, order was passed on 06-02-2013. The complaint and police case was consolidated and criminal case bearing No.5269/2011 was registered.
4- Feeling aggrieved by the aforesaid order of Magistrate, petitioners have again preferred Criminal Revision bearing No.66/2013 but the same was dismissed by learned 10th Additional Sessions Judge, Gwalior vide order dated 04-03-2013 in confirmation of the order passed by Magistrate on 06-02-2013.
4 M.Cr.C.No.1901/2013Challenging the aforesaid revisional Court's order as well as the order of Magistrate, present petition by invoking the inherent jurisdiction of this Court has been preferred by the petitioners.
5- Learned senior counsel for the petitioners submitted that the final report (Khatma) was produced by prosecution before Magistrate then that may be accepted or cognizance may be taken and third option with the Magistrate was to direct further investigation but by ignoring the provisions of the Code, statements of witnesses were recorded during the final report proceedings on the basis of protest petition so called private complaint, by ignoring the provisions of Sections 200, 202, 203 and 204 of the Code. It is further urged that the revisional Court vide its order dated 08-02-2012 has directed the Magistrate to record all evidence produced by the complainant and pass a reasoned order but without following the direction issued by the revisional Court, cognizance has been taken. Further, it has been submitted that no offence is made out and petitioners have been implicated by respondent No.2 with ulterior motive. There is civil dispute between the parties, in absence of eye-witness of the incident and because respondent No.2 Anand Agrawal alias Lallu got himself admitted in a private hospital and instead of giving notice by the police with regard getting himself examined at Government hospital, he obtained the certificate from private hospital. In the opinion of Investigating Officer himself no case is made out against the petitioners, therefore, petition be allowed and orders impugned passed by Courts below be set aside.
6- Combating the submissions made by learned senior counsel for petitioners, respondent No.2's learned counsel Shri Ankur Mody submitted that impugned orders are well merited and no interference is called for. Further it has been submitted that since criminal revisional was dismissed by 10th Additional Sessions 5 M.Cr.C.No.1901/2013 Judge, Gwalior no second revision in the shape of this petition under Section 482 of the Code is maintainable as it is amounting to second criminal revision which is impermissible in the eyes of law. From perusal of order dated 04-03-2013 it is clear that the order has been rightly passed and it is in accordance with law. In support of his contention, reliance has been placed on a decision of Delhi High Court in the case of Darshan Singh Vs. State & Others and (2006) 4 SCC 359 Minu Kumari and Another Vs. State of Bihar and others.
7- On giving anxious consideration to the facts and circumstances of the case and the arguments tendered by learned counsel for the parties, following core questions are arising in this case:
i- Whether the direction issued on 08-02-2012 in Criminal Revision No.411/2011 were properly followed by the Magistrate ?
ii- Whether after filing of final report (Khatma), simultaneous proceedings taken by Magistrate in private complaint/protest petition are sustainable in the eyes of law ?
iii- Whether the cognizance taken by the Magistrate and on challenge affirmed by the revisional Court is liable to be set aside ?
The questions framed above for being answered, will be discussed in the following paras *** IN REGARD TO QUESTION NO.1 8- By virtue of directions issued on 08-02-2012 in Cr.R.No.411/2011, trial Court was directed to take in view the entire evidence produced by the complainant and after taking into consideration the facts mentioned in the final report in regard to 6 M.Cr.C.No.1901/2013 crime No.855/2010 registered at Police Station Morar case be decided afresh on merits.
9- In compliance of these directions, evidence of Smt. Saroj Devi (PW-5), Smt. Radha Agrawal (PW-6) and Dr. Suman (PW-7) were recorded under Section 202 of the Code. Thus, the evidence produced by the complainant was recorded by the trial Court and after taking into consideration the facts and documents of final report, impugned order of taking cognizance was passed on 06-02-2013.
This being so, question No.1 is answered against the petitioners.
IN REGARD TO QUESTION NO.2 10- After investigation, final report will be produced under Section 173 sub-section (2) (i) of the Code and according to Section 173 (2)(ii) the police officer shall communicate to the person, by whom the information relating to commission of offence was first given. Reasoning behind it is that informant should know the result and fate of the FIR lodged by him and in view of that time to time it was held by the Court that on receipt of final report from the police under Section 173 of the Code recommending dropping of the proceedings, Magistrate has to first issue notice to the complainant before passing the order. Though statute does not expressly required a notice to be issued or hearing to be given to the party adversely affected, in the eyes of law it is just necessary that they should be heard by the Court before making an order of dismissal of the complaint. This view was expressed in Chandrasekhara Pandian Vs. Muthukaruppa Thevar, 1983 Madras Law Weekly (Criminal) 347. Similar view was expressed in the case of K.V.N. Koteswara Rao Vs. P.V. Krishna Prasad, 1994 Cr.L.J. 833 (A.P.) and AIR 1985 SC 1285 Bhagwan Singh Vs. Commissioner of Police.7 M.Cr.C.No.1901/2013
11- In Bhagwan Singh (supra), the Apex Court has held as under:
"There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub- section 2(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 of the Code decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report."
12- In view of the aforesaid principle laid down by the Apex Court and on perusal of record, it is clear that in final report dated 06-06-2011 it was mentioned by Station House Officer, Police Station Morar that after giving notice to the complainant this final report along with diary is being submitted. Certainly, this notice was in accordance with the provisions of Section 173(2)(ii) of the Code and thereafter, on receiving the notice from the Court or without notice from the Court, objection under Section 190(1) of the Code (so called protest petition/private complaint) has been submitted by respondent No.2. Opportunity of hearing was 8 M.Cr.C.No.1901/2013 provided to him by Magistrate and the evidence produced by the complainant was recorded which is also in compliance of the revisional Court's order as discussed above and then impugned order dated 06-02-2013 was passed which is perfectly in accordance with law. In this way, the evidence recorded by the trial Court was of three folds:
i- It was taken in compliance of the order of revisional Court.
ii- It was recorded since opportunity of hearing was to be provided pursuant to the notice issued to him for accepting final report.
iii- Evidence recorded under Sections 200 and 202 of the Code.
13- This being so, the entire proceedings and steps taken by the Magistrate fall within four corners of law and by no stretch of imagination it can be said that the steps taken by the Magistrate was without jurisdiction. Accordingly, this question is also answered against the petitioners.
IN REGARD TO QUESTION NO.3 14- On perusal of order dated 06-02-2013, the evidence recorded by magistrate at the time of proceeding on final report, document and evidence collected by the Investigating Officer, it is clear that prima facie offence under Section 307/34 of IPC is made out against the petitioners, therefore, the order of rejecting the final report was rightly passed by the Magistrate and consequently, the revision was also rightly dismissed in confirmation of this order. Thus, this question is also answered against the petitioners.
15- Apart that, it is noteworthy to mention that this Court 9 M.Cr.C.No.1901/2013 cannot ignore the provisions given under Section 210 of the Code which reads as under:
"210. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
16- On a bare perusal of this provision, it is clear that if final report is produced by the police after investigation and simultaneously if private complaint is registered by the Magistrate for the same offence then as per the provisions given under Section 210(2) of the Code the case arising out of police report 10 M.Cr.C.No.1901/2013 shall prevail and complaint case shall be merged into police report. In the aforesaid premises, both the Courts below have not erred in passing the impugned orders because final report filed by the investigating officer was not dropped by Magistrate and on the basis of evidence recorded by Magistrate on private complaint/ protest petition, complaint case was merged in police report and police case was registered after taking cognizance as criminal case No.5269/2011. In this way also, the impugned orders passed by the Courts below are well merited and no interference is called for.
17- Resultantly, in view of the judgment passed in the case of Darshan Singh (supra) and Minu Kumari (supra), this petition cannot be worth treated to be a petition under Section 482 of the Code but it is second revision which is not maintainable. Accordingly, the petition stands dismissed. No order as to costs.
Copy of this order be sent to the Courts below.
(B.D. Rathi)
Judge
Anil* (08.07.2014)