Allahabad High Court
Monu @ Vaibha Singh And Ors. vs The State Of U.P And Anr. on 21 January, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Court No. - 12 Case :- U/S 482/378/407 No. - 7018 of 2013 Applicant :- Monu @ Vaibha Singh And Ors. Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Shashank Shekhar Parihar,Meenakshi Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Arvind Kumar Tripathi (II),J.
(1) Heard Sri H.G.S.Parihar, Senior Advocate assisted by Sri Shashank Shekhar Parihar, learned counsel for the petitioners, Sri Jyotindra Mishra, Senior Advocate assisted by Sri Vaibhav Kallia learned counsel for respondents and learned AGA for the State.
(2) This petition under Section 482 Cr.P.C. has been filed by Monu alias Vaibhav Singh, Ajit Singh, Rana Pratap Singh & Vijai Pratap Singh alias Tirpan Singh for quashing the order dated 30.04.2013 passed by Chief Judicial Magistrate, Gonda in Case No. 883 of 2013 (Dr. Rajesh Pandey vs. Deceased Sonu alias Gaurav Singh and others ) and order dated 25.06.2013 passed by the Incharge Session Judge, Gonda in Crl. Revision No. 335 of 2013 (Monu alias Vaibhav Singh and others vs. State of U.P. and Ors.).
(3) From perusal of the record, it is evident that a first information report was registered, on a written report dated 9.5.2012 of Dr. Rajesh Kumar Pandey at Police Station- Kotwali Nagar, District- Gonda on 15.05.2012, in which one Sonu Singh was named as accused and it was mentioned that five-six unknown persons were with him. This case was registered as case crime no.559-A of 2012 under Section-147/148/149/307/504/506 & 427 IPC. During investigation, some intense legal battle was fought in the court room and a final report was submitted by the Investigating Officer on 10.01.2013, which is annexed as Annexure 11 of this petition. A protest petition was filed by the complainant and after hearing the complainant and after perusal of the case diary, Chief Judicial Magistrate took cognizance of the offence under Section 190(1)(b) of Code of Criminal Procedure and summoned Monu alias Vaibhav Singh, Ajit Singh, Rana Pratap Singh & Vijai Pratap Singh alias Tirpan Singh (all petitioners in this petition) to face trial under Section 147/148/149/307/326/427/504/506 IPC. Feeling aggrieved, a Criminal Revision No.335 of 2013 was filed by the petitioners, which was rejected by the Incharge, Sessions Judge, Gonda vide order dated 25.06.2013. Feeling aggrieved, this petition under Section 482 Cr.P.C. was filed.
(4) It was submitted by learned counsel for the petitioner that:-
(i) the learned C.J.M. has taken cognizance on the basis of the protest application filed by the informant, in which he has made request to summon 8 alleged accused for trial in Case Crime No.559-A/2012, under-Sections 147, 148,149, 307, 326, 427, 504, 506 IPC and four accused have been summoned. The protest application is in form of complaint for summoning accused, who were not mentioned in the column of accused during the investigation as such the learned magistrate ought to have adopted procedure for taking cognizance on the complaint or he ought to have referred to matter for re-investigation/further investigation.
(ii) The learned Magistrate has considered the material collected by the investigating officer Sri Yogendra Nath Singh, against whom complaint was made and he was not found conducting investigation properly and in fair manner, and vide order dated 29.12.2012 passed by the Superintendent of Police Gonda, the investigation was transferred to Sri Lallu Ram Diwakar, S.H.O. Colonelganj, Gonda and the writ petition no.342 M/B of 2012 was filed by Dr. R.K.Pandey (Opposite Party no.2) which was dismissed by this Hon'ble High Court vide order dated 15.01.2013.
(iii) Sri Lallu Ram Diwakar had conducted investigation and recorded statement of no. of witnesses and also did spot inspection and collected material which show that prima facie allegation made by the informant were not found correct but the learned C.J.M. has discarded the material collected by Sri L.R. Diwakar for no rhyme and reason and held that it will be proved by the parties during trial.
(iv) The learned C.J.M. has not applied its mind properly and discarded the material available in the case diary without recording any dissatisfaction, which was favouring the petitioner.
(5) It was further submitted that after submission of the final report, the Magistrate has got three options:- 1) He should accept the final report. 2) He may pass orders for re-investigation and 3) He may take cognizance of the offence himself. It was further submitted that when the Magistrate is of the opinion that he has to take cognizance then the Protest petition will be treated as complaint. It was further submitted that in the instant case, the Court was not able to apply its judicial mind as prior to his applying the judicial mind protest petition was filed and Magistrate had to pass orders. It was further submitted that Magistrate in the instant case should have passed orders for treating the protest petition as a complaint or for re-investigation.
(6) It was further submitted that taking of cognizance is a judicial function and it is the satisfaction of the Magistrate and his satisfaction should be mentioned in the order. Learned Magistrate has not shown his dis-agreement with the finding of the Investigating Officer. He has further stated that a revision was filed against the impugned order, that too, was dismissed, without applying his mind. It was further submitted that there are two stories, first is the application dated 09.05.2012 which was the basis of FIR in case crime no. 559-A of 2012 and second is the application sent by complainant from district jail dated 15.12.2012. It was further submitted that there are two versions in these two applications and in view of this and the report submitted by the Investigating Officer, the findings recorded by Investigating Officer while submitting the final report are based on evidence and the order taking cognizance is likely to be quashed and the matter is likely to be send to the Magistrate for treating it as a complaint case and pass orders afresh after recording the statement under Section 200 and 202 Cr.P.C.
(7) Learned counsel for the applicant has relied upon the cases of Hon'ble Apex Court has held under:-
(i) Popular Muthiah Vs. State (2006) 7 SCC 296 , (ii) Minu Kumari & Another Vs. State of Bihar & Others (2006)4 SCC 359, (iii) Rajiv Thapar & Other Vs. Madan Lal Kapur (2013)3 SCC 330, (iv) Prashant Bharti Vs. State of Delhi (2013) 9 SCC 293 and (v) Lal Kamlendra Pratap Singh reported in (2009) 4 SCC 437.
(8) Learned counsel for the opposite party no.2 submitted that there is no illegality in the impugned order. The Magistrate has every right to pass the orders on the protest petition after going through the evidence recorded by the Investigating Officer and he was justified in taking cognizance under Section 190(1)(b) Cr.P.C. as the Magistrate has only considered the material and evidence collected by the Investigating Officer and Magistrate has not relied upon any other evidence outside the case diary.
(9) Learned counsel for opposite party no.2 relied upon case Law of Pooran Singh & Others Vs. State of U.P. and Others 2003 Crl.Law Journal 2275, Kuli Singh and Others Vs. State of Bihar and Others, 1978 Crl. L.J, 1575 and Abhinandan Jha and Others Vs. Dinesh Mishra AIR 1968 Supreme Court, 117.
(10) In the case of Popular Muthiah Vs. State (2006) 7 SCC 296; Hon'ble Apex Court has held that High Court can exercise its inherent jurisdiction suo moto in the interest of justice and it can do so while exercising other jurisdiction such as appellate or revisional jurisdiction, no formal application for invoking inherent jurisdiction is necessary.
(11) Hon'ble Apex Court has further held that the jurisdiction of the learned magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefore. The magistrate has jurisdiction in the event a final form is filed, (i) to accept the final form, (ii) in the event, protest petition is filed, to treat the same as a complaint petition and if a prima facie case is made out, to issue process, (iii) to take cognizance of the evidence against a person although a final form has been filed by the police, in the event he comes to the opinion that sufficient material exists in the case diary itself and (iv) to direct re-investigation into the matter.
(12) In the case of Minu Kumari & Another Vs. State of Bihar & Others (supra) has held as under:-
"The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice."
(13) In the case of Rajiv Thapar & Other Vs. Madan Lal Kapur (supra), Hon'ble the Apex Court has held, as under;
"The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
(14) In the case of Prashant Bharti Vs. State of Delhi (supra), the Apex Court has held that when all the ingredients mentioned in Hon'ble the Apex Court's decision in Rajiv Thapar (supra) stands satisfied then High Court ought to have persuaded it on the basis of material available before it, while passing the impugned order to quash the criminal proceeding initiated against the appellant-accused, in exercise of the inherent powers vested with it under Section 482 Cr.P.C.
(15) For ready reference and convenience Section 482 Cr.P.C. is quoted below:-
"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
(16) In the case of State of Orissa Vs. Saroj Kumar Sahoo; [(2006) 2 SCC (Crl.) 272], Hon'ble the Apex Court has held as under :-
"When exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge."
(17) Hon'ble the Apex Court in the same case has further held as under:-
"It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."
(18) The same view has been reiterated by Apex Court in Rajiv Thapar's Case (supra).
(19) In view of the above settled legal position, while deciding the instant petition, all the submission made by petitioner's counsel mentioned in Para 5(ii)(iii) are not tenable as it will require discussion and evaluation of evidence recorded during investigation.
(20) So far as, submission in Para 5(i)(above) is concerned. FIR discloses that one named accused (now dead) and some unknown persons were involved in crime. The names were later mentioned in statement under Section 161 Cr.P.C. recorded by investigating officers.
(21) Hon'ble the Apex Court in the case of Abhinandan Jha Vs. Dinesh Mishra (supra) has held that on receiving final report it was not within the powers of the magistrate to direct the police to submit a charge-sheet but it is open to him to agree or disagree with the police report. If he agrees that no case is made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary, in that event he may pass the order to that effect. If ultimately, the magistrate is of the opinion that the facts set out in the police report constitute an offence he can take cognizance of the offence, notwithstanding the contrary opinion, expressed in the police report. It was observed therein that the magistrate in that event could take cognizance under Section 190(1)(c) of the Code.
(22) The reference to Section 19(1)(c) of the code was a mistake for Section 190(1)(b) and this has been pointed out in a later decision of H.S. Bains Vs. State AIR 1980 S C 1883.
(23) In H. S. Bains case (supra) it was held by the Supreme Court that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under Section 173(2), Cr.P.C. The Magistrate may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. In that case it was observed : "If a complaint states the relevant facts in his compliant and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324, Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye-witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statement of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police.
(24) In another decision in India Carat Pvt. Ltd. v. State of Karnataka AIR 1989 SC 885 (890), it was held by Apex Court as under :-
"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 conclusions arrived at by the investigation 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. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him."
(25) In the case of Tularam v. Kishore Singh : AIR 1977 SC 2401, it was held by Apex Court that if the police, after making an investigation, sent 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 the case under Section 190(1)(b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.
(26) From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-
(I)He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II)He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or.
(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
(27) Now, it is settled legal position that 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 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.
(28) In the instant case, a perusal of the impugned order reveals that Magistrate has after considering the protest petition and considering the evidence recorded by investigating officers has found that there is sufficient evidence to proceed against the accused persons, namely, Monu @ Vaibha, Ajit Singh, Rana Pratap Singh and Vijay Pratap Singh @ Tirpan Singh under Sections 147,148,149,307,326,427,504,506 IPC. It is abundantly clear that no other extraneous material except statement of witnesses in case diary has been considered. In view of this, Magistrate has not committed any illegality in summoning the accused persons under Section 190(1)(b) of the Code of Criminal Procedure. There was no occasion to adopt the procedure of complaint case.
(29) A part from that in the Case of Mohit alias Sonu and Anr. vs. State of U.P. and Anr.[AIR 2013 SC 2248], the Apex Court has held that So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. (Para 22) (30) Hon'ble the Apex Court has further held as under:-
"16. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers."(Para 16) "The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-a-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 Cr.P.C. cannot and should not be resorted to." (Para 23) (31) In the instant case, there was a remedy available to the petitioners in the form of criminal revision and they have exhausted it and the criminal revision was dismissed. Code of Criminal Procedure bars second revision by the same party too, hence after exhausting the right of revision, power under Section 482 Code of Criminal Procedure, cannot be exercised by this Court.
(32) Learned counsel for the petitioner prayed that if the petition is not going to succeed then they be granted benefit of the decision of Amrawati Vs. State 2005 Crl. L.J. 755 (All) as approved by the Apex Court's decision in Lal Kamlendra (2009)4 Supreme Court Case 437 and it may also be ordered that discharge application be considered by Chief Judicial Magistrate.
(33) Chief Judicial Magistrates have not been given powers of discharge in cases triable by Sessions Court, as it is the trial court i.e. Sessions Court, who has to hear accused before framing of the charge. All the magistrate can do is to commit the case to Session's Court after following procedure under Section 207 of Code of Criminal Procedure. In view of this legal position, such direction will be against law and cannot be issued to Chief Judicial Magistrate.
(34) So far as the direction to consider the bail application in the light of Amrawati (supra) and Lal Kamlendra's case (supra) is concerned, this court has held in Amrawati's case (supra) that this Court cannot direct Sessions Judge considering the provision of first proviso to Section 439(1) of Code of Criminal Procedure.
(35) So far as direction to Magistrate is concerned, such direction cannot be given to Magistrate considering relevant amendment and addition of fourth proviso of Section 437(1)of Code of Criminal Procedure, which was added by legislature after the decision of Amarawati's Case.
(36) From the above discussion, the instant petition is liable to be dismissed and is hereby dismissed.
Order Date :-21/1/2014 Nitesh/Subodh (Justice Arvind Kumar Tripathi-II)