Allahabad High Court
Ashok Kumar Tyagi And Anr. vs State Of U.P. And Anr. on 8 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2443
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 15.10.2020 DELIVERED ON 08.12.2020 Court No.30 Case :- CRIMINAL REVISION No. - 530 of 2014 Revisionist :- Ashok Kumar Tyagi And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- S.S. Shukla Counsel for Opposite Party :- Govt. Advocate,V.K.Agnihotry Hon'ble Vipin Chandra Dixit,J.
1. This criminal revision has been filed against the order dated 13.01.2014 passed by Additional Chief Judicial Magistrate, Court No.5, Ghaziabad in Criminal Case No.373 of 2010 (Baleshwar Dayal Vs. Ashok and others), under Sections 420, 467, 468, 471 I.P.C., P.S. Kavi Nagar, District Ghaziabad, by which final report no.439 of 2011 dated 29.6.2011 was rejected and the revisionist no.1 Ashok Kumar Tyagi, revisionist no.2 Smt. Reena Tyagi and Ram Nath Tyagi were summoned.
2. The brief facts of the case are that the opposite party no.2 Baleshwar Dayal Tyagi is residing in Canada for last 32 years having nationality of Canada. The opposite party no.2 had purchased a plot on 28.6.1991 bearing no.R-9/4 area 1266.66 square yard situated in Raj Nagar Colony, Ghaziabad. Since the opposite party no.2 was residing at Canada, he executed a power of attorney and will deed on 1.1.1991 in favour of revisionist no.1, who is brother-in-law (Sala) of opposite party no.2, to look after his property. Since the revisionist no.1 is close relative of opposite party no.2 as such the opposite party no.2 had full faith on him but in the year 2007 opposite party no.2 knew that revisionist no.1 is going to misappropriate his property and as such he cancelled the power of attorney as well as the will deed on 6.3.2007 which was earlier executed in favour of revisionist no.1. The information regarding cancellation of power of attorney and will deed was sent on 16.3.2007 through U.P.C. as well as by registered post and revisionist no.1 was also informed on telephone by the opposite party no.2. Opposite party no.2 had also informed to the Sub Registrar, Ghaziabad as well as Secretary, Ghaziabad Development Authority on 19.3.2007 to the effect that he had already cancelled the power of attorney which was executed in favour of revisionist no.1 and now revisionist no.1 has no authority to sell out his property through power of attorney. In spite of cancellation of power of attorney the revisionist no.1 executed a sale deed in favour of M/s Karb Constructions Pvt. Ltd. on 20.3.2007 in which Ram Nath Tyagi, father-in-law of revisionist no.1 was the director. The opposite party no.2 had lodged a F.I.R. against revisionist no.1 Ashok Kumar Tyagi as well as against Ram Nath Tyagi (father-in-law of the revisionist no.1) on 31.1.2008 and the case was registered as Case Crime No.96 of 2008, under Sections 467, 468, 471, 420 I.P.C. in P.S. Kavi Nagar, District Ghaziabad.
3. During investigation the opposite party no.2 alleged that his bank account was fraudulently re-opened by the revisionist no.2 who is wife of revisionist no.1 and as such the revisionist no.2 was also implicated as accused in the aforesaid case. The Investigating Officer after investigating the matter had submitted the final report on 30.5.2009 which was rejected by the court below on the objections of opposite party no.2 and direction was issued for re-investigation. The Investigating Officer again had submitted the final report on 29.6.2011 on the ground that no offence was found against the accused persons and disputes between the parties are of civil nature and already a civil suit being O.S. No.162 of 2008 is pending between the parties. Aggrieved with the final report dated 29.6.2011 the opposite party no.2 had filed protest petition on 18.1.2012 stating therein that power of attorney was cancelled much prior to execution of sale deed and the accused persons have committed fraud to misappropriate the property of the opposite party no.2. There are ample evidence against the accused persons and they are guilty to commit offence under Sections 467, 468, 471, 420, 465, 466 I.P.C. The learned Magistrate vide order dated 13.1.2014 had accepted the protest petition and the final report no.439 of 2011 dated 29.6.2011 was rejected and had taken cognizance under Section 190(1)(b) of Cr.P.C. and summoned the accused persons Ashok Kumar Tyagi, Ram Nath Tyagi and Smt. Reena Tyagi under Sections 420, 467, 468, 471, 120-B I.P.C. The order of learned Magistrate dated 13.1.2014 is challenged by Ashok Kumar Tyagi and Smt. Reena Tyagi through present criminal revision.
4. Heard Sri S.S. Shukla, learned counsel for the revisionists, Sri Raj Kamal Srivastava, learned A.G.A. for the State/opposite party no.1, Sri V.K. Agnihotry, learned counsel for opposite party no.2 and perused the record.
5. It is submitted by learned counsel for the revisionists that order passed by court below is against the material evidence on record collected by Investigating Officer during investigation. It is further submitted that Investigating Officer after due investigation had submitted final report that no offence is made out against the revisionists but the court below has committed jurisdictional error by exercising of power under Section 190(1)(b) of Cr.P.C. It is further submitted that the court below has failed to consider that there is civil litigation between the parties and the suit being O.S. No.162 of 2008 for cancellation of agreement to sale deed is pending in the court of Civil Judge (S.D.) and the final report was rightly submitted that no offence is made out against the revisionists.
6. On the other hand, learned A.G.A. appearing for the State has submitted that the order impugned has been passed by learned Magistrate on the basis of materials which are available on record and there is no illegality in any manner and the criminal revision is liable to be dismissed with costs.
7. Learned counsel appearing for opposite party no.2 has submitted that power of attorney had already been cancelled by the opposite party no.2 and the revisionist no.1 has no right or authority under the law to execute the sale deed in favour of his father-in-law. The revisionist no.2 who is wife of revisionist no.1 had operated the dead bank account of opposite party no.2 after re-opening the same and all the accused persons manipulated the papers only for the purposes to grab the property of the opposite party no.2. It is further submitted that there are sufficient evidence in the case diary to submit the charge-sheet against the accused persons but the Investigating Officer in collusion with accused persons had submitted the final report in favour of accused persons. It is further submitted by learned counsel for opposite party no.2 that learned Magistrate found that there are enough material against the accused persons for committing offence, has rightly summoned them by the impugned order. The order dated 13.1.2014 was passed by the learned Magistrate relying on the evidence which were available in the case diary. After prima-facie satisfaction it was concluded by the learned Magistrate that the accused persons had committed offence and as such they have rightly been summoned, and the criminal revision has no force and is liable to be dismissed.
8. The powers of Magistrate for taking cognizance is provided in Chapter XIV of Cr.P.C. and Section 190 is relevant for the purposes of controversy involved in the present case which reproduced herein below:-
"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."
9. Section 190 of Cr.P.C. empowered the Magistrate to take cognizance of any offence firstly upon receiving a complaint, secondly upon a police report and thirdly upon information received from any person other than a police officer or upon his own knowledge. The impugned order dated 13.1.2014 has been passed by learned Magistrate exercising his power under Section 190(1)(b) of Cr.P.C.
10. Learned counsel for revisionists had relied on following case laws:-
(1) 2016 (2) JIC 513 (All) Hari Ram and others Vs. State of U.P. and another.
(2) 2019 (2) JIC 325 (All) Rishipal and others Vs. State of U.P. and another.
(3) 2008 (1) JIC 737 (SC) Inder Mohan Goswami and another Vs. State of Uttaranchal and others.
11. It is submitted by learned counsel for revisionists on relying the aforesaid judgments that the Magistrate has erred in relying the facts stated in protest petition as well as affidavits filed along with protest petition. It is further submitted that the impugned order is against the law as the Magistrate has not referred to any material collected by Investigating Officer and the final report was rejected in the light of affidavits placed before him along with protest petition.
12. The facts of the present case are entirely different as in the present case the learned Magistrate had taken cognizance after carefully perusing the case diary and after prima-facie satisfaction that there are ample evidence against the accused persons for summoning them. The cognizance order has not been passed merely on the protest petition or any affidavit filed in support of it. The findings have been recorded by the learned Magistrate that after perusal of case diary and after prima-facie satisfaction on the basis of material available in the case diary the cognizance has been taken. It is well settled law that Magistrate is not bound by the final report submitted by Investigating Officer, rather Section 190 Cr.P.C. empowered the Magistrate to make the different view and proceed accordingly.
13. Hon'ble Apex Court in the case of Har Prasad and another Vs. Ranveer Singh and another reported in (2008) 11 SCC 431 has laid down the law that there is no obligation on the Magistrate to accept the final report and if from the material on the case diary he found that offence has been committed, the Magistrate can take cognizance under Section 190(1)(b) of Cr.P.C. The paragraphs 7 & 8 are relevant for the purpose and are quoted herein below:-
"7. Reference may be made to a judgment of this Court in Abhinandan Jha and Ors. v. Dinesh Mishra where it was held as follows: (AIR pp. 120-23, paras 8-9, 12-13 & 17 "8. It is now only necessary to refer to Section 190, occurring in Chapter XV, relating to jurisdiction of Criminal courts in inquiries and trials. That section is to be found under the heading 'Conditions requisite for initiation of proceedings' and sub-section (1) is as follows:
'190. Cognizance of offences by Magistrates.- (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police-officer;
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.'
9. From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if on the other hand, it appears to the officer, in-charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate; or, if the offence is bailable to take security from him for his appearance before such Magistrate. But, whether a case comes under Section 169, or under Section 170 of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, under Section 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a charge - sheet, on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.
12. Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power, under Section 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.
13. It will be seen that the Code, as such, does not use the expression 'charge-sheet' or 'final report'. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a 'charge-sheet'. But in respect of the reports sent under Section 169 i.e. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or 'summary'.
17. We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under Section 190(1)(c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the officer in- charge of the police station and that opinion determines whether the report is to be under Section 170, being a 'charge-sheet', or under Section 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under Section 169, or under Section 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code."
8. As the factual position goes to show the order passed by the learned Magistrate was in consideration of the police report and was not relatable to the protest petition. That being so, the view of the High Court does not suffer from any infirmity and no interference is called for."
14. Similarly in the case of Jagdish Ram Vs. State of Rajasthan and another reported in (2004) 4 SCC 432, the Hon'ble Apex Court laid down the law that the Magistrate is empowerd to take cognizance if the material on record makes out the case against the accused persons and at this stage the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. It is also laid down that while issuing the process the Magistrate is not required to record reasons. The paragraph 10 is reproduced herein below:-
"10. The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or not, yet the entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. (Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal).
15. The similar view has also been taken by the Hon'ble Apex Court in the case of Vishnu Kumar Tiwari Vs. State of U.P. reported in (2019) 8 SCC 27. The paragraph 43 is relevant which is reproduced herein below:-
"43. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State, a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim v. State, a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: (Qasim case, SCC Online All para 6) "6. ... In Abhinandan Jha also what was observed was "it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint." This observation would not mean that every protest petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 Cr.P.C. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case."
16. The similar view has also been taken by the Hon'ble Apex Court in the case of M/s India Carat Pvt. Ltd. Vs. State of Karnataka and another reported in (1989) 2 SCC 132. The paragraphs 15 & 16 are relevant which are reproduced herein below:-
"15. In the case of H.S. Bains (supra) one Gurnam Singh submitted a complaint to the Judicial Magistrate 1st Class, Chandigarh alleging that H.S. Bains trespassed into his house along with two others on 11-8-1979 at about 8 a.m. and threatened to kill him and his son. The Magistrate directed the police under Section 156(3) of the Code to make an investigation. After completing the investigation, the police submitted a report to the Magistrate under Section 173(2) of the Code stating that the case against the accused was not true and that the case may be dropped. The learned Magistrate disagreed with the conclusion of the police and took cognizance of the case under Sections 448 and 506 of the Indian Penal Code and directed the issue of process to the accused. Thereupon, the accused moved the High Court for quashing the proceedings before the Magistrate. As the High Court declined to interfere, the accused approached this Court by way of appeal by special leave. Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused. It was further urged that if the Magistrate was not satisfied with the police report, there were only two courses open to him, viz. either to order a further investigation of the case by the police or to take cognizance of the case himself as if upon a complaint and record the statements of the complainant and his witnesses under Section 200 of the Code and then issue process if he was satisfied that the case should be proceeded with. Repelling those contentions this Court held as follows:
"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. If a complainant states the relevant facts in his complaint 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 congnizance 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 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."
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 Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) 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."
17. The Magistrate is not bound to the final report submitted by Investigating Officer. The Magistrate can have his own opinion and if after prima-facie satisfaction he finds that there are sufficient material and evidence collected by the Investigating Officer during investigation, he can reject the final report and can issue process against the accused persons. The order passed by the learned Magistrate clearly indicates that he carefully examined the material and evidence collected during investigation which are part of the case diary and after prima-facie satisfaction had rejected the final report and taken cognizance under Section 190(1)(b) Cr.P.C. and as such there is no illegality or irregularity committed by learned Magistrate while passing the order dated 13.1.2014.
18. The next submission of learned counsel for the revisionists is that the dispute is of civil nature and civil suit is still pending for cancellation of sale deed and as such criminal case can not proceed and the court below has exceeded its jurisdiction to summon the revisionists in a criminal case. It is well settled law settled by the Hon'ble Apex Court in the case of P. Swaroopa Rani Vs. M. Hari Narayana reported in 2008 (5) SCC 765 that civil suit and criminal case can proceed simultaneously. The relevant paragraphs 13 and 19 are quoted herein below.
"13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v. State of Madras AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants (2005) 12 SCC 226].
19. It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible."
19. In view of aforesaid discussions, there is no illegality or irregularity in the order passed by learned Magistrate dated 13.1.2014 by which the final report was rejected and the revisionists were summoned to face the trial. The revisionists have thus failed to point out any infirmity, illegality, irregularity, impropriety or incorrectness in the order and the present criminal revision lacks merits and deserves to be dismissed.
20. Accordingly, the criminal revision is dismissed. No order as to costs.
Order Date :-08.12.2020 Kpy