Allahabad High Court
Ashok And Ors. vs State Of U.P. And Anr. on 20 December, 1993
Equivalent citations: 1994CRILJ2132
ORDER Kundan Singh, J.
1. The main controversy involved in this revision centres round the scope of powers of the Magistrate under Sub-section (1) of Section 190 of the Criminal Procedure Code on a protest petition, duly supported by the affidavits of the witnesses.
2. The present revision is directed against the order dated 8-9-93 passed by the IX A.C.J.M., Allahabad in Criminal Case No. 869 of 1993 whereby the final report submitted by the Investigating Officer was rejected and the cognizance has been taken against the accused applicants by summoning them under Sections 147, 148, 149 and 307, I.P.C.
3. In short, the prosecution story as revealed by F.I.R., is. that at about 7.00-8.00 p.m. on 20-4-93, Om Shankar Pandey, the informant, his brother Arvind Kumar, and one Om Prakash were returning from village Baghbana to Allahabad on a motor cycle. In the way, they met the 6 accused applicants, who were carrying with them guns and bombs. Accused Satendra Kumar fired a shot from his gun while the other accused hurled bombs on the complaint party but luckily they escaped and ran away from the place of occurrence leaving the motor cycle there. The complaint party lodged F.I.R. of that incident at Police Station Ghoorpur, Allahabad, on the same night, i.e., 20-4-93. The matter was investigated and police submitted a final report in the court. The complaint filed protest petition along with the affidavits of Om Prakash, Arvind Kumar and Om Shanker Pandey alleging that the final report be rejected and the accused be summoned for the offences punishable under Sections 147, 148, 149 and 307, I.P.C. It has also been averred in those affidavits that even prior to the submission of the final report the Investigating Officer was siding with the accused persons and the complaint party had apprehension that he would not take any action against them on the basis of the F.I.R. The IXth Addl. C.J.M., Allahabad has not accepted the final report and has summoned the accused applicants taking cognizance under Section 190(1)(a), Cr.P.C. by order dated 8-9-93 on the basis of the protest petition, supported by the affidavits of the witnesses.
4. Heard learned counsel for the parties.
5. The learned counsel for the applicants contended that the learned Magistrate has committed an error on the face of record in taking cognizance of the offences only on the basis of the protest petition and the affidavits filed in support thereof. No doubt the Magistrate is empowered to take cognizance on the basis of the police report after rejecting the opinion of the Investigating Officer that no prima facie case is made out in case the material collected and statements of witnesses recorded under Section 161, Cr.P.C. disclosed the commission of offence and he can also ignore protest petition and summon the accused persons but he is also competent to take cognizance on the basis of protest petition provided he examines the complainant and his witnesses under Sections 200 and 202, Cr.P.C. as provided in Chapter XV of the Criminal P. C. After compliance of the provisions of Sections 200 and 202 of the Criminal P. C., the Magistrate is empowered to issue process under Section 204, Cr.P.C., if he is satisfied that there is sufficient ground for proceeding against the accused persons.
6. The sheet anchor of the argument of the learned counsel for the complainant was Section 190, Cr.P.C. and on its strength he argued that the Magistrate was competent to take cognizance on the basis of protest petition under clause (a) of Sub-section (1) of Section 190 of the Criminal P. C. and he rightly summoned accused persons straightway and he was not required to follow the procedure laid down Under Sections 200 and 202 of the Criminal P. C. on the anology that the provisions of Chapter XIV which includes the provisions of Section 190, Cr.P.C. are independent and they are not subject to the procedure laid down in the Chapter XV which relates to the cognizance of the offence by the Magistrate under Sections 200 and 202, Cr.P.C. The Code provides two independent procedures to the Magistrate for taking cognizance of the offences and summon accused persons on filing of a complaint as provided (1) in Chapter XIV and (2) in Chapter XV of the Criminal P. C. Both the procedures are not inter connected or dependent on each other. Initiation of proceeding under Section 190(1)(a) of Chapter XIV are not subject to the provisions of Sections 200 and 202 of the Criminal P. C. of Chapter XV inasmuch as Section 190 starts with the words "subject to the provisions of this chapter", which means they are not subject to provisions of Sections 200 and 202, Cr.P.C. of Chapter XV. The Magistrate has jurisdiction to exercise his power Under Section 190(1)(a) judicially. If he is satisfied from the facts disclosed in the protest petition that there exist a ground for making out a prima facie case, he can take cognizance of the offence and summon the accused persons straightway without resort to the procedure contained in Sections 200 and 202, Cr.P.C. However, if he decides to postpone the issue of process, then he is required to follow the procedure laid down in Sections 200 and 202 of the Criminal P. C.
7. It is not disputed by the learned counsel appearing for the parties that the Magistrate is empowered to take cognizance Under Section 190(1), Cr.P.C. 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.
8. The cognizance of the offence can be taken on the basis of the police papers as envisaged in clause (b) of Section 190(1), Cr.P.C. 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, Cr.P.C. in the opinion of the Magistrate, are sufficient to make out a prima facie case against the accused persons. Similar controversy arose before the Supreme Court in the case of India Carat Pvt. Ltd. v. State of Karnataka , where it has been laid down 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 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."
9. The contention of the learned counsel for the opposite party that the provisions of Section 190(1) of the Criminal P. C. are not subject to the provisions of Sections 200 and 202, Cr.P.C. and the cognizance can be taken straightway on the protest petition without examining the complainant and his witnesses under Sections 200 and 202, Cr.P.C. respectively, is not tenable because Chapter XIV of which Section 190(1) is also constituent prescribes 3 modes of powers to be exercised by the Magistrate and the procedure for the exercise of those powers is contained in Section 173 of Chapter XII and in Sections 200 and 202 of Chapter XIV. In case the Magistrate has exercised his power under clause (c) of Section 190(1) and has examined complainant and his witnesses then he is not required by II proviso to Section 200 of Chapter XV to examine again the complainant and his witnesses under Section 200 of the Criminal P.C. The reference of Section 192 in Section 200 clearly indicates the inter-connection of the provision of Sections 190(1)(a), 190(1)(c) and 200 of the Code. The provisions of Section 190(1)(b) are subject to the provisions of Section 173, Cr.P.C. as the police report is defined in Section 2(r) of the Code in the words: "police report" means a report forwarded by a police officer to Magistrate under Sub-section (2) of Section 173. In similar way the provisions of Section 190(1)(a) of the Code are not independent of the provisions of Sections 200 and 202, Cr.P.C. In case the protest petition comes under the definition of 'complaint' as defined in Section 2(d), "complaint" means any allegation made orally or in writing to the Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Cognizance of the offence can be taken by the Magistrate on the basis of the protest petition and the procedure laid down under Sections 200 and 202, Cr.P.C. is followed. This Court in the case "Pancham Singh v. State of U.P." reported in 1988 All Cri C 217: (1988 All LJ 888) has held:
The legal position is quite clear. Once a final report is submitted against somebody and simultaneously a charge sheet is submitted against the others, if the Magistrate takes cognizance on the basis of the charge-sheet and accepts the final report, a protest petition will lie and if such protest petition has all the ingredients mentioned in Section 2(d) of the Code of the Criminal Procedure it can be treated as a complaint and proceedings of complaint case may go on involving Sections 200 and 202, Cr.P.C. The Magistrate can then pass an order according to law."
This Court has further held in the case "Shabir Ali v. State of U.P." reported in 1988 All Cri C 263 : (1988 All LJ 783):
"Even after once accepting a final report submitted by the police, the Magistrate can take cognizance of the case either (i) on the protest petition treating it as a complaint, or (ii) on the police report itself if he comes to the conclusion on the basis of new facts or after hearing the parties, and perusing the papers that are made available to him that on the previous occasion he had over-looked some important aspect of the case and he can revise his earlier order. In the first contingency he has to proceed on the protest petition and hence the procedure prescribed for a complaint case has to be undergone."
10. The Supreme Court laid down a ratio of decision in the case "Kishun Singh v. State of Bihar" reported in Judgments Today 1993 (1) SC 173 : (1993 Cri LJ 1700). in the following words (at pp 1703, 1704 of Cri LJ):
"Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commision of a crime with a view to setting the law in motion to bring the offender to book. Under this provision congnizance can be taken in three ways enumerated in clauses (a) (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. Even though the expression take cognizance is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decisions to initiate judicial proceedings against the alleged offender he is said to have taken connizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Section 200/204 of the Code (See Jamuna Singh v. Bhadai Sah )."
11. Thus it is clear that whenever a protest petition is treated as a complaint, the Magistrate will have to proceed in accordance with the procedure laid down in Sections 200, 202 and 204, Cr.P.C. In a case exclusively triable by 1 the Court of Session, he will require the complaint to examine all his witnesses on whom he places reliance. The copies of the statements etc. will have to be furnished to accused under Section 208, Cr.P.C. The main purppose of the provision of Section 208, Cr.P.C. is to enable the accused to know what is the material against him. In case the protest petition is not treated as a complaint and straightway the cognizance is taken on the protest petition, then the procedure prescribed under Sections 200, 202 and 204 of the Criminal Procedure Code will not be followed and the provisions of Section 208, Cr.P.C. will not be complied with. In that event the case of the accused will be prejudiced and the accused will be denied of an opportunity to know the material against them and the very purpose of Section 208, Cr.P.C. will be frustrated.
12. Now the result of the above analysis of the legal position is that the Magistrate has power to take cognizance under Section 190(1)(b) on the police report irrespective of the opinion of the Investigating Officer that prima facie no case is made out, if on perusal of the police papers and statements of witnesses recorded under Section 161, Cr.P.C. he is satisfied that there is sufficient material to make out a prima facie case against the accused but straightway he cannot take cognizance on the basis of the Protest Petition, duly supported by the affidavit of the witnesses, without following the procedure prescribed under Chapter XV for a complaint case and since in the instant case he has not recorded the statements of the complaint and the witnesses before passing the impugned order, the order under challenge in the revision is liable to be set aside.
13. Accordingly this revision succeeds and is hereby allowed. The order dated 8-9-1993 passed by the court below is set aside. Since in the present case the Magistrate has not applied his mind to the material on record, i.e. statements of the witnesses recorded under Section 161, Cr.P.C. during investigation and the Police report, mentioned in Section 173, Cr.P.C. nor he has followed the procedure laid down for, a complaint case, it is now open to him (to proceed in accordance with law as mentioned above.