Allahabad High Court
Surya Bhan Son Of Ram Kumar Yadav vs State Of U.P. Through Secretary (Home), ... on 1 March, 2007
Equivalent citations: 2007CRILJ2230, 2007 CRI. L. J. 2230, 2007 (3) ALL LJ 158, 2007 (3) AJHAR (NOC) 1069 (ALL.) = 2007 CRI. L. J. 2230, (2007) 2 ALLCRIR 1841, (2007) 58 ALLCRIC 126
JUDGMENT M.K. Mittal, J.
1. This writ petition has been received in this Court by nomination.
2. The writ petition has been filed with the prayer to quash the impugned order dated 6th December, 2006 passed by the Incharge Sessions Judge, Allahabad in Criminal Revision No. 876 of 2006 whereby the revision has been dismissed in limine and order dated 10th October 2006 passed by the Additional Chief Judicial Magistrate, Court No. 2, Allahabad in Criminal Case No. 99/XII of 2006 (Deepak Kumar Singh v. Dilip Agrahari and Ors.) [Annexures-1 and 2], whereby the final report No. 36 of 2006 has been rejected and the protest petition dated 17.6.2006 filed by respondent No. 2 has been accepted and the accused have been directed to be summoned under Section 190(1)(b) of Cr.P.C.
3. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Roshan Khan for the petitioner, Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Udai Chandani for respondent No. 2, learned A.G.A. and perused the material on record. Counter and rejoinder affidavits have been exchanged.
4. The brief facts of the case are that respondent No. 2 Deepak Kumar Singh filed an application under Section 156(3) of Cr. P.C. on 15th December, 2005 alleging that the election of the Students Union, Allahabad University, had concluded on 24th November, 2005. Manoj Kumar Singh elder brother of Deepak Kumar Singh was a candidate for the President's post. On that day, in the night at about 8 P.M. respondent No. 2 and his supporters had collected at the room of Ajai Singh in Chhota Baghara and they had some programme for dinner etc. At that time Chandan Pandey, driver of the brother of respondent No. 2, Brijesh Singh and Santosh Singh were also present. The boys were making noise expecting the victory of their candidate. But at that time, Kamlesh Yadav with his supporter Dilip Agrahari and his uncle Surya Bhan and 8-10 persons came at the room and started pulling Deepak Kumar Singh saying as to why they were talking against them. They took Deepak outside and Dilip Agrahari struck a butt blow on his head. At that time Surya Bhan exhorted to shoot him and Kamlesh Yadav fired but the shot hit Chandan Pandey and he fell down. Kamlesh Yadav wanted to make a second fire but he could not do so as someone fired from his (Deepak Kumar Singh) side to save them and the shot hit Kamlesh Yadav. Surya Bhan also made fire but it missed. Thereafter, the injured were taken to the hospital. On the basis of this application, the learned Magistrate directed for registration of the case and after investigation the Investigating Officer submitted a final report. Against the final report respondent No. 2 filed a protest petition and along with that protest petition he also filed his affidavit as well as affidavits of his witnesses Brijesh Singh, Santosh Kumar, Chandan Pandey and Ajai Singh. The learned Magistrate after considering the case diary and affidavits allowed protest petition holding that the Investigating Officer had not correctly recorded the statements of the witnesses and had wrongly concluded that no incident had taken place. The learned Magistrate also held that the medical evidence on record proved that the incident took place. Consequently he rejected the final report and allowed the protest petition and directed to summon the accused under Section 190(1)(b) of Cr. P.C. Against that order the applicant preferred Criminal Revision No. 879 of 2006 but the same has been dismissed in limine, hence this writ petition.
5. It may be noted that a report was lodged by Shiv Bhan Singh Yadav on 24.11.2005 at 10.30 P.M. regarding the incident that took place the same day at 9 P.M. and the case was registered as case crime No. 6237050358 of 2005 under Section 302 I.P.C. In this report Manoj Kumar Singh, Deepak Kumar Singh (respondent No. 2) and Chandan Pandey have been named as accused persons and it has been alleged that after conclusion of the students union election, the informant Shiv Bhan Singh Yadav along with nephew Kamlesh Kumar Singh Yadav who was candidate for the post of General Secretary had hardly reached near the house of Dilip Kumar Agrahari, a friend on motorcycle, the accused persons came in a black Safari vehicle which was being driven by Chandan Pandey. They abused Kamlesh Kumar Singh Yadav and Manoj Kumar Singh fired at the right temple of Kamlesh Kumar Singh Yadav from point blank range. He was injured and fell down. The accused also made several fires in air and one of them hit Chandan Pandey. Kamlesh Kumar Singh Yadav was taken to hospital, but the doctors present there, declared him dead.
6. Learned Counsel for the petitioner has contended that the learned Magistrate has not properly exercised jurisdiction vested in him while summoning the accused under Section 190(1)(b) of Cr.P.C. and has committed mistake regarding procedure itself. According to the learned Counsel for the petitioner, the Investigating Officer has statutory duty to investigate on the basis of report and after collecting evidence he can submit chargesheet or can give a final report in the matter. Although, he has further contended that the Magistrate is not bound by the opinion of the Investigating Officer and can form his own independent opinion but only on the basis of materials collected by the Investigating Officer, the Magistrate can either accept the final report or reject the same and take cognizance of the offence under Section 190(1)(b). But if there is any extraneous matter, then the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. and can proceed under Sections 200 and 202 of Cr.P.C. or can direct the Investigating Officer for further investigation under Section 173(8) of Cr.P.C. According to him, in this case the Investigating Officer submitted final report and against that respondent No. 2 filed a protest petition with affidavits which was extraneous matter and, therefore, the learned Magistrate could not have summoned the accused under Section 190(1)(b) of Cr.P.C.
7. Learned Counsel for the respondent No. 2 has contended that if the material collected during investigation shows that the offence has been committed, the accused can be summoned under Section 190(1)(b) of Cr.P.C. even if there is any extraneous material and at the most it is irregularity and not illegality.
8. Section 190 provides for cognizance of offence by a Magistrate. The relevant portion of Sub-section (1) reads as under:
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;
9. It shows that a Magistrate can take cognizance upon receiving a complaint of facts which constitute such offence in Sub-clause (1)(a) and upon a police report of such facts under Sub-clause (1)(b). The Criminal Procedure Code provides for separate procedures for cases in which the cognizance has been taken on a complaint and on a police report. Therefore, these are two separate categories and cannot be intermixed. These are statutory provisions and have to be followed as such.
10. In the case of Pakhando and Ors. v. State of U.P. and Anr. 2001 (43) ACC 1096, a Division Bench of this Court has held 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 straightaway 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.
11. In this case it has also been held that 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 the 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.
12. Therefore, this shows that the Magistrate while taking cognizance under Section 190(1)(b) can only rely on the police report that means evidence and material collected by the Investigating Officer during investigation. The Magistrate can not, therefore, take into consideration any extraneous material and if he does so, he should take cognizance under Section 190(1)(a) and should proceed in the matter as a complaint case.
13. It is relevant to quote the following passage of the case of Ajit Kumar Palit v. State of West Bengal 1963 Supp (1) SCR 953 as quoted in the case of CREI Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Anr. :
The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and where used with reference to a court or judge, to take notice of judicially. It was stated in Gopal Marwari V. emperor by the learned Judges of tie Patna High Court in a passage quoted with approval by this Court in R.R. Chari V. State of U.P. SCR at p.320 that the word, 'cognizance' was used in the Code to indicate the point when the magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty ILR at p. 416 'taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such applies his mind to the suspected commission of an offence'. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled.
14. Therefore, the legal position is clear that where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. Applying this principle to Section 190(1)(b), it becomes apparent that the Magistrate while taking cognizance of the offence under this section cannot rely on any material other than the police report of such fact.
15. The contention of learned Counsel for the respondent No. 2 is that even if the Magistrate takes wrong cognizance under Section 190(1)(a) or (b), it is merely an irregularity. But this contention cannot be accepted as statute itself provides as to what material is to be considered by the Magistrate before taking cognizance and procedure for trial of the case will depend on the cognizance taken in accordance with those materials. The cognizance is taken of the offence and. therefore, the court on perusal of the complaint or report has to satisfy itself on the basis of the facts which constitute the offence. There may be instances where the Magistrate finds that the complaint is not made by the person who can lodge the complaint or the complaint is not entertainable by that Court or cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. In such matters Magistrate should refuse to take cognizance but if the Magistrate takes cognizance in such matters, and proceeds, the same may be curable under Section 460 Cr.P.C. But in the case where statute directs as to how and on what material the cognizance is to be taken, any violation thereof will be illegality and not irregularity. As for instance if the Magistrate takes cognizance on a complaint and directs to proceed as a police case or conversely takes cognizance on a police report and directs to proceed as a complaint case, this defect in cognizance would not be irregularity and would not be curable as it would vitiate the procedure. Such contingency is not permissible under law and in the circumstances the contention as raised by the learned Counsel for the respondent No. 2 is not tenable and cannot be accepted.
16. In this case the learned Magistrate while passing the impugned order has given a finding that the Investigating Officer did not correctly record the statements and wrongly concluded that the incident had not taken place and submitted final report whereas the medical and documentary evidence fully proved that the incident took place. It is well settled that the cognizance is taken of the offence and not of the offender and at the stage of cognizance the learned Magistrate is only required to see whether prima facie any offence has been committed. But the learned Magistrate instead of giving any such findings has concluded that the incident did take place.
17. In the instant case, the learned Magistrate has directed to summon the accused persons under Section 190(1)(b) of Cr.P.C. This in itself is an illegal order as the accused could not be summoned and tried under Section 190(1)(b) of Cr.P.C. This section empowers the Magistrate to take cognizance of an offence which is constituted from the facts as disclosed in the police report. The accused is summoned for the offence that has been committed by him under the provisions of Indian Penal Code or any other law under which he could be tried and punished. The learned Magistrate should have specified the offence and the section (s) under which he was summoning the accused after taking cognizance. Thus I come to the conclusion that the impugned order dated 10.10.2006 passed by the learned Magistrate is not correct and is liable to be set aside. The order in revision passed on 6.12.2006 by the learned Incharge Sessions Judge is also, therefore, liable to be set aside. Therefore, the writ petition is to be allowed.
18. The writ petition is hereby allowed and the impugned orders are set aside. The learned Magistrate is directed to consider the matter afresh and to proceed according to law and in the light of the observations made in the judgment herein above. The complainant shall appear in the Court of the learned Magistrate for further orders on 12th March, 2007.